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ARGUMENT 



ON THE QUESTION OF THE VALIDITY OF 

THE TREATY OF LIMITS BETWEEN 

COSTA RICA AND NICARAGUA 



AND 



OTHER SUPPLEMENTARY POINTS CONNECTED WITH IT, ^ , ^ 

SUBMITTED TO THE / t ,\ 

Arbitration of tlie President of tlie Dnited States of America, 

FILED ON BEHALF OF THE GOVERNMENT OF COSTA EICA 

BY 

PEDRO PEREZ ZELEDON, 

Its Envoy Extbaokdinaex and Ministee Plenipotentiary 
IN THE United States. 

(Tkanslated into English by J. I. Rodriguez.) 



WASHINGTON : 
GrIBSON BeOS., PeINTEES AND BOOKBINDERS. 

1887. 




^^^:^^«^^::? ^^L^ 



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) 

CONTENTS 



ANTECEDENTS. 

Treaty of Guatemala establishing the basis of the arbiti-ation . 5 
Points which, according to the Government of Nicaragua, are 
doubtful and require interpretation, ..... 9 

INTKODUCTION, 15 

FIRST PART. — Historical Preliminaries. 

Chapter I. 

Nicoya ; its annexation to Costa Rica, . . . . . .21 

Chapter II. 

The San Juan river during the Spanish rule, . . . .30 

Chapter III. 

The San Juan river from 1821 to the date of the treaty of 1858, . 38 

Chapter IV. 

Negotiations for the settlement of the question of limits from the 
dissolution of the Republic of Central America to the year 1858, 45 

Chapter V. 

Continuation of the subject of the foregoing chapter, . . .51 

SECOND PART. — Elucidation of the Principal Point. 

Chapter I. 

Exposition of the arguments made by Nicaragua in support of 
the idea that the treaty of 1858 is not valid, . . . .61 

Chapter II. 

The treaty of limits was not made under the sway of any consti- 
tution, but under a Government temporarily endowed with un- 
limited powers, 65 

Chapter III. 

The consideration of the exceptional regime existing in Nicaragua 
in 1858 continued, ......... 70 

Chapter IV. 

The treaty of limits does not imply any reform or amendment of 
the Nicaraguan Constitution of 1838, 77 

Chapter V. 

The treaty of limits was ratified, not once or twice, but on several 
repeated occasions by the Nicaraguan Legislatures, . . .82 



IV 



Chaptek VI. 

The public law of Nicaragua recognizes the principle that the 
Republic is bound by an international treaty whatever the im- 
portance thereof may be, ........ 89 

Chaptek VII. 

The whole of the present controversy rests substantially upon the 
use of a certain word. — Validity of the treaty in good faith, . 93 

Chaptek VIII. 

Repeated acknowledgments of the validity of the treaty by dif- 
ferent Nicaraguan administrations, ...... 97 

Chapter' IX. 

Costa Rica has never admitted that the treaty of limits required 
for its validity further ratifications, ...... 104 

Chapter X. 

The second alleged cause of the nullity of the treaty of limits, 
which is the want of ratification by Salvador, examined in gen- 
eral, 108 

Chapter XI. 

Whether the treaty of 1858 was, or was not, the result of violence 
used against Nicaragua by the Administration of Don Juan 
Rafael Mora, President of Costa Rica, ..... Ill 

Chapter XII. 

The Government of Salvador was not an essential party to the 
treaty of limits, ......... 115 

Chapter XIII. 

The Government of Salvador was, primarily, a fraternal mediator, 
and subsequently, and in regard to only one secondary clause 
of the treaty, guaranteeing party of the execution of the said 
clause, 120 

Chapter XIV. 

The guarantee cannot be construed as a condition of the treaty, . 127 

Chapter XV. 

Examination of the latter reasons alleged by Nicaragua in support 
of her theory that the tretsty of limits is invalid, . . .134 

THIRD PART. — Answer to the questions propounded by Nic- 
aragua IN REGARD TO THE RIGHT CONSTRUCTION OF THE 
TREATY OF LIMITS. 

Chapter I. 

Whether the starting-point of the border line is movable as the 
waters of the river, or whether the Colorado river is the limit 



of Nicaragua, and whether the waters of the San Juan river 
can be deviated without the consent of Costa Rica, . . 139 

Chapter II. 

"Whether men-of-war or revenue cutters of Costa Rica can navi- 
gate on the San Juan river, ....... 155 

Chapter III. 

Whether Costa Rica is bound to co-operate in the preservation 
and improvement of the San Juan river and the Bay of San 
Juan, and in what manner : and whether Nicaragua can under- 
take any work without considering the injury which may result 
to Costa Rica, 162 

Chapter IV. 

Which is the centre of the Salinas Bay ? — Is Costa Rica a party to 
the grants of interoceanic canal which Nicaragua might make ? 
What are, in this respect, the rights of Costa Rica ? . . 169 

CONCLUSIOK 179 

DOCUMENTS. 

No. 1. 

Treaty of limits between Costa Rica and Nicaragua concluded 

April 15, 1858, . 185 

No. 2. 

Decree of the Federal Congress of Central America in 1825 ap- 
proving the annexation of Nicoya to Costa Rica, . . . 192 
No. 3. 

The state of things existing at the time of the labors of the Con- 
stituent Assembly is declared to be an extraordinary regime, 
wherein the constitutional rules in force under regular circum- 
stances could be laid aside, . . . . . ' . 193 
No. 4. 

Communication from the Costa Rican Secretary of State. — It 
shows the ardent desire of Costa Rica to settle finally, and for- 
ever, the questions pending between it and Nicaragua, even at 
the sacrifice of its own rights and its national pride, . . 195 
No. 5. 

Communication showing the spirit of conciliation and fratesnity 
which prevailed in the making of the treaty of limits. — The 
limits between Nicaragua and Costa Rica are, more than any- 
thing else, internal or domestic jurisdictional boundaries, . 197 
No. 6. 

Congratulation by the United States Minister for the near settle- 
ment of the differences between Costa Rica and Nicaragua. — 



VI 

PAGE. 

Speech of Gen. Mirabeau B. Lamar, Envoy Extraordinary and 
Minister Plenipotentiary of the United States in Nicaragua, . 199 
No. 7. 

Note of the Gosta Eican Secretary of State showing the peaceful 
disposition of Gosta Eica in regard to the question of limits, . 300 
No. 8. 

Communication from the Secretary of State of Costa Eica show- 
ing that the initiation of the treaty of 1858 was due to the 
friendly mediation of the Government of Salvador and to over- 
tures made by Nicaragua subsequent to the repudiation made 
by the latter of the treaty of 1858, which Costa Eica had ap- 
proved of, . . 202 

No. 9. 

Act of exchange of the ratifications of the treaty of limits, . . 204 

No. 10. 

Editorial of the official newspaper of Nicaragua on the conclu- 
sion of the treaty. — It shows the spirit of conciliation and fra- 
ternity of Costa Eica and Nicaragua. — Thanks given to the 
Government of Salvador for its friendly mediation, . . . 205 

No. 11. 

Leave-taking of President Mora, . . .. . . . . 207 

No. 12. 

Leave-taking of Senor Negrete, 209 

No. 13. 

Answer to the letter of leave-taking of Col. Negrete. — He is called 
Apostle of Peace. — Solemn and effusive expression of gratitude 
tendered to Salvador, ........ 211 

No. 14. 

Editorial of the " Gaceta de Nicaragua " subsequent to the offi- 
cial leave-taking of Senores Don Juan Eafael Mora and Col. Ne- 
grete. — The latter is promoted to the rank of General as a re- 
ward for his services. — The Nicaraguan people feel jubilant for 
the friendly relations between Costa Eica and Nicaragua, . 213 

No. 15. 

Spirit of concord which presided over the treaty. — Evident ne- 
cessity and advisability that it should be concluded. — Faculties 
of the Government to approve it. — Final character of the treaty. 
— Identical position of Costa Eica and Nicaragua, . . . 214 

No. 16. 

The treaty of April 15, 1858, is communicated to the friendly 
Governments as a happy termination of the protracted differ- 
ences between Costa Eica and Nicaragua, . . . . . 217 



Vll 



No. 17. 

Validity of the Treaty, 220 

No. 18. 

The Constitution of Nicaragua declares that the Nicaraguan ter- 
ritory borders ou the south by the Republic of Costa Kica. — 
The Treaty of Limits is raised to the character of fundaruental 

law, 222 

No. 19. 

The value and force of the Treaty of Limits is recognized, and one 
of its provisions is thus carried into effect, .... 223 

No. 20. 

Costa Rica is recognized as a party to the contract of the Intero- 
ceanic Canal, and its acquiescence is asked to make certain mod- 
ifications in it, 224 

No. 21. 

Official despatch acknowledging that the Nicaraguan territory 
ends at the Salinas Bay as declared by the Treaty of Limits of 

1858, 226 

No. 22. 

The Nicaraguan Chambers direct Article VIII of the Treaty of 
Limits of April 15, 1858, to be complied with, and the Execu- 
tive Power carries their decision into effect, .... 227 

No. 23. 

Official despatch showing the validity and strength of the Treaty 
of Limits and the execution thereof by both Republics, . . 228 
No. 24. 

Costa Rica a party to the contract of Interoceanic Canal ap- 
proves modifications made thereto, ...... 229 

No. 25. 

Despatch showing the validity and strength of the Treaty of Lim- 
its, and its execution, ........ 230 

No. 26. 

The Government of Nicaragua asks that of Costa Rica to remove 
its custom officers from the La Flor river, its former frontier, 
to the new limit fixed by the treaty of April 15, 1858, . . 231 
No. 27. 

The Government of Costa Rica is invited to assist that of Nicara- 
gua in improving the port of San Juan del Norte, almost de- 
stroyed by the deviation of the waters of the San Juan river 
into the bed of the Colorado river, ...... 233 

No. 28. 

Nicaragua reminds Costa Rica of the duty imposed upon her by 
the treaty of April 15, 1858, to defend her frontiers at San Juan 
and the Bolarios Bay, ........ 235 



VUl 



No. 29. 

Execution of the Treaty of Limits, 237 

No. 30. 

The Nicaraguan Chambers direct the Executive to comply with 
Art. VIII of the Treaty of Limits of April 15, 1858, . . .238 
No. 31. 

The strict compliance with the Treaty of Limits demonstrated. — 
The Government of Costa Eica asks the rights vested in it by 
Article VI of a contract of transit to be expressly secured, . 239 
No. 32. 

The Government of Nicaragua asks for some forces to be situ- 
ated at Sarapiqui (a confluent of the San Juan river, on the 

right bank), 242 

No. 33. 

The Nicaraguan Chambers order one of the provisions of the 
Treaty of Limits of 1858 to be complied with, .... 244 
No. 34. 

Validity and force of the Treaty of Limits. — Costa Eica does not 
accede to situate forces at Sarapiqui on the ground that it is 

unnecessary, 245 

No. 35. 

Costa Eica protests against the occupation and deterioration of 
the Colorado river, ......... 247 

No. 36. 

The Government of Nicaragua recognizes that the Colorado river 
and its mouth are in Costa Eican territory and belong to Costa 
Eica, and cannot be closed against the will of the latter, . . 248 

No. 37. 

Nicaragua recognizes still more solemnly that the Colorado river 
and the right bank of the San Juan river are Costa Eican terri- 
tory, 250 

No. 38. 

The Minister of Nicaragua in "Washington solemnly declares be- 
fore the American Government that the Eepublic of Costa Eica 
borders on the interior waters of Nicaragua, and that its flag is 
the only one which, in union with the Nicaraguan flag, can 
float on said waters, ......... 251 

No. 39. 

The Government of Nicaragua approves the declaration of its 
Minister at Washington, and commends him for his zeal and 

fidelity, 252 

No. 40. 

The action of Don Luis Molina, Minister of Nicaragua in Wash- 
ington, is approved and commended. — Executive order reward- 



IX 

PAGE. 

ing the important services of Don Luis Molina, Minister Pleni- 
potentiary of Nicaragua in the United States, and Mr. Mande- 
ville Carlisle and Don Fernando Guzman, .... 253 

No. 41. 

Yaliditj' and strength of the treaty of April 15, 1858, . . . 254 
No. 42. 

Validity and strength of the Treaty of Limits, . . • 256 

No. 43. 

The Government of Costa Eica orders an exploration to be made 
of its lands bordering on the San Juan river, .... 257 

No. 44. 

New expeditions to the banks of the San Juan river, . . . 258 
No. 45. 

Nicaragua acknowledges that Costa Rica borders on the San Juan 
river, ............ 259 

No. 46. 

Nicaragua promises that the interests of Costa Eica will be re- 
spected, and that its rights will suffer no detriment, . . 260 
No. 47. 

Costa Eica protests against the deviation of the waters of the Col- 
orado river belonging to that Republic, ..... 261 

No. 48. 

Despatch stating that a sanitary cordon of Costa Eica has tres- 
passed on the Nicaraguan frontier as established by the treaty 
of 1858, 262 

No. 49. 

Nicaragua asks that a sanitary cordon be moved back to the fron- 
tier established by the treaty of 1858, 263 

No. 50. 

The Government of Costa Eica consents to move back its sanitary 
cordon to a point indisputably located within the limits estab- 
lished by the treaty of April 15, 1858, 264 

No. 51. 

Costa Eica shows her disposition to enter into arrangements with 
Nicaragua to determine by mutual agreement what should be 
done in regard to communications on the Atlantic side, . . 265 

No. 52. 

Contract Ay6n-Chevalier. — Costa Eica is an essential party to the 
interoceanic canal. — The contract will be void if Costa Eica 
does not accept it. — Costa Eica will be invited to make in favor 
of the grantee such concessions in the Costa Eican territory as 
Nicaragua makes in her own, ....... 266 



No. 53. 

Editorial of the Nicaraguan "Gaceta" on the Ayon-Chevalier 
canal contract. — -The San Juan river explicitly declared to be 
(1869) in great part the frontier of Costa Rica. — The adherence 
of Costa Rica to the contract recognized to be indispensable. — 
Costa Rica is asked to grant in her territory what Nicaragua has 
granted in hers. — All of this presupposes the acknowledged va- 
lidity of the Treaty of Limits, 268 

No. 54. 

The Government of Nicaragua asks the Government of Costa 
Rica to request the National Constituent Convention to mod- 
ify certain articles of a treaty between the two Republics for 
the digging of an interoceanic canal, ..... 270 

No. 55. 

Project of a road from San Jose de Costa Rica to San Carlos for 
the export of coffee through San Juan del Norte. — Costa Rica 
earnestly invited to co-operate in the restoration of the port of 
San Juan by uniting the waters of the Colorado river with those 

of the San Juan river, 271 

No. 56. 

Remarks made by the Government of Costa Rica to the Govern- 
ment of Nicaragua when the latter submitted to the Nicaraguan 
Congress its so-called doubts in regard to the validity of the 

Treaty of Limits of 1858, 274 

No. 57. 

Remarks of the Government of Costa Rica in refutation of the 
doubts entertained by the Government of Nicaragua on the 
validity of the Treaty of Limits, . . . . . . 279 

No. 58. 

Costa Rica declares that it will keep its custom-houses and main- 
tain its sovereignty over the whole territory which, according to 
the treaty of 1858, belongs to it unless other limits are not es- 
tablished by mutual agreement or arbitral decision, ". . . 290 
No. 59. 

Costa Rica protests against the non-compliance on the part of 
Nicaragua of Article VIII of the Treaty of Limits, . . . 291 
No. 60. 

The ex$)lanations of Nicaragua as to the non-compliance with 
Article VIII of the Treaty of Limits are accepted, . . . 294 
No. 61. 

Opinion of the historian of Central America, Dr. Don Lorenzo 
Montufar, at present the Secretary of State of the Republic of 
Guatemala, in regard to the Treaty of Limits between Costa 
Rica and Nicaragua, 296 



XI 



No. 62. 

Extracts from the "History of Nicaragiia from the Remotest 
Times to the year 1852," written by order of General Don 
Joaquin Zavala, President of the Republic, by Seiior Dr. Don 
Tomas Ayon. Vol. I. Granada : Printing office of El Centro 
Americano, 1882. — The author of said history gives the name 
of Desaguadero to the San Juan de Nicaragua river, . . 305 

No. 63. 

Organic laws of Costa Rica in regard to limits with Nicaragua, . 308 
No. 64. 

Failure of Canal Negotiations with the Government of the United 
States owing to the fact that Nicaragua refused Costa Rica in- 
tervention in it, . . 316 



ANTECEDENTS. 



ANTECEDENTS. 



Legation of Costa Eica, 
Washington, D. C, Jnhj 30, 1887. 

Sir : I have the honor to enclose a copy of the treaty signed 
at the city of Guatemala on the 24th of December, 1886, by 
plenipotentiaries of Costa Rica and Nicaragua with the friendly 
mediation of the Guatemalan Government, in which it was 
stipulated that both contracting parties should submit to the 
arbitration of the President of the United States of America 
the question whether the treaty of limits celebrated by them 
on the 15th of April, 1858, is or is not valid. 

In the name and under special instructions of the Govern- 
ment of Costa Rica I request you to interpose your good and 
valuable offices with His Excellency the President in order 
that he may consent to render to my country the eminent ser- 
vice above referred to. 

My Government hopes that such a marked favor will be 
obtained by it, and grounds its expectations upon the benevo- 
lent friendship shown to it by your Government and on the 
traditional interest that this great nation has always felt for 
the peace, tranquility, and welfare of the other nations of 
America which are its sisters. 

With protestations of my highest consideration, I am, your 
most obedient servant, 

PEDRO PEREZ Z. 

To the Honorable Thomas F. Bayard, 

Secretary of State, 'c&c, c&c, <&c. 



Legation of Costa Kiga, 
Washington, D. C, July 31, 1887. 

SiE : I have been favored by your estimable communica- 
tion, dated yesterday, in which you were pleased to inform 
me that His Excellency the President has been pleased to 
consent to be arbitrator to decide the controversy between 
Costa Rica and Nicaragua on the validity or invalidity of the 
treaty of April 15, 1858, celebrated by the two Republics for 
the final settlement of their questions about territorial limits. 

It is with great satisfaction that I have received this pleas- 
ant information, which I hastened to transmit by cable to my 
Government. Indeed, I never apprehended that the illus- 
trious Chief Magistrate of this great nation would refuse 
Costa Rica the inestimable service of adjusting its differences 
with its neighboring sister, the Republic of Nicaragua. 

I comply with a very gratifying duty in giving to His 
Excellency the President and to you yourself, for your own 
part in the premises, my most expressive thanks for this new 
testimony of friendship given to my Government. And in 
so doing I comply, also, with special recommendations of 
my Government. 

I shall have the honor to submit to the high consideration 
of His Excellency the President, within the period marked by 
the treaty, the grounds and reasons which, in the opinion of 
the Government of Costa Rica, rendered the validity of the 
treaty of 1858 evident and irrefutable. 

With feelings of high esteem, I am, your very obedient 
servant, 

PEDRO PEREZ Z. 

To the Hon. Thomas F. Bayakd, 

Secretary of State, c&c, dbc, die. 



Treaty op Guatemala Establishing the Basis of the 

Arbitkation. 

Convention hehceen the Governments of Nicaragua and Costa 
-Rica, to svhmit to the arhitrailon of the Government of the 
United States the ([uestion in regard: to the validity of the 
treaty of 15 April, 1858. 

The Governments of the Republics of Nicaragua and Costa 
Rica desiring to terminate the question debated by them since 
1871, to wit : 

Whether the treaty, signed by both on the 15th day of 
April, 1858, is or is not valid, have named, respectively, as 
plenipotentiaries, Senor Don Jose Antonio Roman, envoy 
extraordinary and minister plenipotentiary of Nicaragua, near 
the Government of Guatemala, and Senor Don Ascension 
Esquivel, envoy extraordinary and minister plenipotentiary 
of Costa Rica, near the same Government, who having com- 
municated their full powers, found to be in due form, and 
conferred with each other, with the mediation of the minister 
for foreign affairs for the Republic of Guatemala, Doctor Don 
Fernando Cruz, designated to interpose the good offices of 
his Government, generously offered to the contending par- 
ties and by them gratefully accepted, have agreed to the fol- 
lowing articles : 

(1) The question pending between the contracting Govern- 
ments, in regard to the validity of the treaty of limits of the 
15th of April, 1858, shall be submitted to arbitration. 

(2) The arbitrator of that question shall be the President 
of the United States of America. Within sixty days follow- 
ing the exchange of ratifications of the present convention, 
the contracting Governments shall solicit of the appointed 
arbitrator his acceptance of the charge. 



(3) Id tlie unexpected event that the President of the 
United States should not be pleased to accept, the parties 
shall name, as arbitrator, the President of the Republic of 
Chili, whose acceptance shall be solicited by the contracting 
Governments within ninety days from the date upon which 
the President of the United States may give notice to both 
Governments, or to their representatives in Washington, of 
his declination. 

(4) If, unfortunately, the President of Chili should also be 
unable to lend to the parties the eminent service of accepting 
the charge, both Governments shall come to an agreement 
for the purpose of electing two other arbitrators within ninety 
days, counting from the day on which the President of Chili 
may give notice to both Governments or their representatives, 
in Santiago, of his non-acceptance. 

(5) The proceedings and terms to which the decisions of 
the arbitrator are limited shall be the following : 

Within ninety days, counting from the notification to the 
parties of the acceptance of the arbitrator, the parties shall 
present to him their allegations and documents. The arbi- 
trator will communicate to the representative of each Govern- 
ment, within eight days after their presentation, the allega- 
tions of the opposing party, in order that the opposing 
party may be able to answer them within the thirty days 
following that upon which the same shall have been communi- 
cated. 

The arbitrator's decision, to be held valid, must be pro- 
nounced within sis months, counting from the date upon 
which the term alloAved for the answers to the allegations 
shall have expired, whether the same shall or shall not have 
been presented. 

The arbitrator may delegate his powers, provided that he 
does not fail to intervene directly in the pronunciation of the 
final decision. 



(6) If the arbitrator's aAvard should determine that the 
treat}' is vahd, the same award shall also declare whether 
Costa Eica has the right of navigation of the river San Juan 
with vessels of war or of the revenue service. In the same 
manner he shall decide, in case of the validity of the treiaty, 
upon all the other points of doubtful interpretation which 
either of the parties may find in the treaty, and shall com- 
municate to the other party within thirty days after the ex- 
change of the ratifications of the present convention. 

(7) The decision of the arbitrator, whichsoever it may be, 
shall be held as a perfect treat}^ and binding between the con- 
tracting parties. No recourse whatever shall be admitted, and 
it shall begin to have effect thirty days after it shall have been 
notified to both Governments or to their representatives. 

(8) If the invalidity of the treaty should be declared, both 
Governments, within one year, counting from the notification 
of the award of the arbitrator, shall come to an agreement to 
fix the dividing line between their respective territories. If 
that agreement should not be possible, they shall, in the fol- 
lowing year, enter into a convention to submit the question 
of boundaries between the two Republics to the decision of 
a friendly Government. 

From the time the treaty shaU be declared null, and during 
the time there may be no agreement between the parties, or 
no decision given fixing difinitely the rights of both countries, 
the rights established by the treaty of the 15th of April, 1858, 
shall be provisionally respected. 

(9) As long as the question as to the validity of the treaty 
is not decided, the Government of Costa Eica consents to 
suspend the observance of the decree of the 16th of March 
last as regards the navigation of the river San Juan by a na- 
tional vessel. 

(10) In case the award of the arbitrators should decide 
that the treaty of limits is valid, the contracting Govern- 



ments, within ninety days following tliat upon wliicli tliey 
may be notified of the decision, shall appoint four commis- 
sioners, two each, who shall make the corresponding meas- 
urements of the dividing line, as provided for by Article 2 
of the referred to treaty of 15th April, 1858. 

These measurements and the corresponding landmarks shall 
be made within thirty months, counting from the day upon 
which the commissioners shall be appointed. The commis- 
sioners shall have the power to deviate the distance of one 
mile from the line fixed by the treaty, for the purpose of find- 
ing natural limits or others more distinguishable. But this 
deviation shall be made only when all of the commissioners 
shall have agreed upon the point or points that are to sub- 
stitute the line. 

(11) This treaty shall be submitted to the approval of the 
Executive and Congress of each of the contracting Repub- 
lics, and their ratifications shall be exchanged at Managua 
or San Jos^ de Costa Rica on the 30th of June next, or 
sooner if possible. 

In testimony of which the plenipotentiaries and the min- 
ister of foreign affairs of Guatemala have hereunto signed 
and sealed with their private seals, in the city of Guatemala, 
this 24th day of December, 1886. 

ASCENSION ESQUIYEL. 

J. ANTONIO ROMAN. 

FERNANDO CRUZ. 



Points Which, Accoeding to the Government of Nicaragua, 
ARE Doubtful and Require Interpretation. 

Department of 
Foreign Relations of Nicaragua, 

Managua, Jxtne 22, 1887. 
Sir : By order of the President and in pursuance of Arti- 
cle VI of the Convention of Arbitration, concluded at Guate- 
mala, between Costa Rica and Nicaragua, I have the honor 
to communicate to the Government of Your Excellency the 
points of doubtful interpretation found in the treaty of April 
15, 1858, which, in the event foreseen by that Article, this 
Government proposes to submit to the decision of the arbi- 
trator. 

first. 

1. Punta de Castilla point having been designated as the 
beginning of the border line on the Atlantic side, and finding 
itself, according to the same treaty, at the mouth of the San 
Juan river ; now that the mouth of the river has been changed, 
from where shall the boundary start ? 

2. How shall the central point of the Salinas Bay, which 
is the other end of the dividing line, be fixed ? 

3. Whether by that central point we are to understand 
the centre of the figure ; and, as it is necessary for- its deter- 
mination to fix the limit of the Bay towards the ocean, what 
shall that limit be ? 

second. 

4. Nicaragua consented, by Article IV, that the Bay of 
San Juan, which always exclusively belonged to her and 
over which she exercised exclusive jurisdiction, should be 



10 

common to both Republics ; and by Article VI she consented, 
also, that Costa Rica should have, in the waters of the river, 
from its mouth on the Atlantic up to three English miles 
before reaching Castillo Viejo, the perpetual right of free 
navigation for purposes of commerce. Is Costa Rica bound 
to concur with Nicaragua in the expense necessary to pre- 
vent the Bay from being obstructed, to keep the navigation 
of the river and port free and unembarrassed, and to improve 
it for the common benefit ? If so, 

5. In what proportion must Costa Rica contribute ? In 
case she has to contribute nothing — 

6. Can Costa Rica prevent Nicaragua from executing, at 
her own expense, the works of improvement ? Or, shall she 
have any right to demand indemnification for the places 
belonging to her on the right bank, which may be necessary 
to occupy, or for the lands on the same bank which may be 
flooded or damaged in any other way in consequence of the 
said works ? 

THIRD. 

7. If, in view of Article V of the treaty, the branch of the 
San Juan river known as the Colorado river must be consid- 
ered as the limit between Nicaragua and Costa Rica, from 
its origin to its mouth on the Atlantic ? 

FOURTH. 

8. If Costa Rica, who, according to Article VI of the 
treaty, has only the right of free navigation for the purposes 
of commerce in the waters of the San Juan river, can also 
navigate with men-of-war or revenue cutters in the same 
waters ? 

FIFTH.. 

9. The eminent domain over the San Juan river from its 
origin in the Lake and down to its mouth on the Atlantic, 



11 

belonging to Nicaragua according to tlie text of the treaty, 
can Oosta Rica reasonably deny her the right of deviating 
those waters ? 

SIXTH. 

10. If, considering that the reasons of the stipulation con- 
tained in Article VIII of the treaty have disappeared, does 
Nicaragua, nevertheless, remain bound not to make any grants 
for canal purposes across her territory without first asking 
the opinion of Costa Rica, as therein provided ? Which are, 
in this respect, the natural rights of Costa Rica alluded to 
by this stipulation, and in what cases must they be deemed 
injured ? 

SEVENTH. 

11. Whether the treaty of April 15, 1858, gives Costa Rica 
any right to be a party to the grants of inter-oceanic canal 
which Nicaragua may make, or to share the profits that Nic- 
aragua should reserve for herself as sovereign of the territory 
and waters, and in compensation of the valuable favors and 
privileges she may have conceded ? 

In transmitting the above to Your Excellency, and request- 
ing Your Excellency to acknowledge the receipt thereof, it is 
pleasing to me to reiterate the assurances of my respect and 
consideration. 

FERNANDO GUZMAN. 

To His Excellency The Minister of Foeeign Relations ' of 
the Government of Costa Rica. 



INTRODUCTION. 



INTRODUCTION. 



What is the question submitted by the Repubhcs of Costa 
Rica and Nicaragua to the impartial and final decision of the 
President of the United States of America ? 

It is simply : 

Whether the treaty of limits concluded by both Republics 
at San Jose of Costa Rica on the 15th day of April, 1858, is 
or is not valid ? 

This, and nothing else, forms the subject of the debate. 

If, as I confidently hope, the question is decided in an 
affirmative sense, then some other points, of secondary or 
accessory character, depending upon the subject-matter, and 
referring to the proper construction to be placed upon the 
treaty, shall be also considered. 

If, on the contrary — what in my judgment is little less than 
an impossibility — the question is decided in a negative sense, 
then the discussion about limits, which was closed and dis- 
posed of in 1858 by the treaty, so adjudged to be invalid, 
shall be reopened and restored to the condition in which it 
was at that time ; but the determination of the boundaries 
between the two Republics will not, in any way whatever, 
be included within the scope of the arbitration. This im- 
portant subject is left to be disposed of by subsequent nego- 
tiation between the two Governments ; and if it should hap- 
pen that no agreement can be reached within the period of 
one year, then another arbitration, the terms of which will 
then be discussed and agreed upon, should be resorted to 
to settle and set at rest the dispute. 

These are substantially, and as far as the fixing of the sub- 
ject of the controversy is concerned, bhe provisions of the 



16 

treaty of Guatemala of December 2, 1886, whicli established 
the basis of the present arbitration. 

Under these circumstances it is clear that I must not oc- 
cupy myself at all, unless incidentally, with anything which 
refers to limits between one country and the other, because 
this is not, by any means, the point to be discussed ; and that, 
therefore, my argument must be directed to show that the 
treaty of April 15, 1858, is perfectly valid ; that it cannot 
but be valid in the light of international law ; that it has 
been always recognized as valid by Costa Eica and other 
nations equally friendly to the two neighboring Eepublics ; 
and that Nicaragua herself, for many years, did also recog- 
nize its validity. 

But, in order to illustrate in such a manner as is desirable 
and proper this only subject of the debate, it seems to me 
unavoidable to preface my work by some historical remarks 
and refer therein to the ancient boundaries of Costa Rica, 
which were the San Juan river through the whole of its 
course, the great Lake, and the La Flor river. But this I will 
endeavor to do as briefly and concisely as permitted by the 
purpose I have in view, which is to show how far Costa Eica 
was carried by its spirit of conciliation and true fraternity 
when it consented to the treaty of 1858, which deprived her 
of her historical, as well as natural and legitimate, bound- 
aries — thus leaving beyond a doubt that if Costa Eica has 
always acted with proper firmness in defending and asserting 
its rights in regard to the treaty in question, it is not because 
the said treaty is in any way or manner whatsoever advan- 
tageous to Costa Eica, but because the Costa Eican Govern- 
ment and people have always desired, as they do now desire, 
that a perfect international agreement be respected and com- 
plied with. 

I will,, therefore, begin by making a statement of the ques- 
tions which the treaty of limits, now under discussion, set at 
rest and decided, and were, on the one side, the annexation 
to Costa Eica of the Nicoya district, which took place in 



17 

1824, when the States forming the Federal Kepnblic of Cen- 
tral America were organized and defined, and on the other 
side the ditierent claims set forth by both bordering nations 
on the outlet (el " Desaguadero ") of the Lake of Nicaragua 
or San Juan river. Subsequently I will explain the circum- 
stances which preceded the treaty of 1858. And then I will 
proceed to examine and refute such arguments as have been 
made by Nicaragua in opposition to that treaty and for the 
purpose of invalidating or rescinding it. 
2 



FIRST PART. 



FIRST PART. 
HISTORICAL PRELIMINARIES. 



Chaptee I. 

NICOYA ITS ANNEXATION TO COSTA KICA. 

The Province of Costa Rica, now the Republic of the same 
name, was created by Emperor Charles V in the year 1540, 
under the name of " Government of Cartago or Costa Rica," 
in that part of the Province of Yeragua which the Crown 
reserved for itself, west of the Dukedom of Veragua, granted 
in 1537 to the descendants of Christopher Columbus. 

The limits of this Government extended from sea to sea in 
latitude, while in longitude they ran along the Caribbean Sea 
from the Zarabaro or Almirante Bay (Lake of Chiriqui) to 
the Rio Grande river, now called Aguan or Roman river, west 
of Cape Camaron, embracing the whole Central American 
littoral between the 9th and 16th parallels of north latitude. ^ 

This demarcation expressly included within the jurisdiction 
of Costa Rica, and as a principal part of this Province, the 
territory of the mouths of the outlet (Desaguadero), or San 
Juan river, and a great part of its course, following it up to 
within fifteen leagues of the Lake of Nicaragua, and running 
from there toward the north, always at a distance of fifteen 
leagues from the coast, up to the banks of the Rio Grande 
river. Therefore the whole of the Atlantic coast of Nicaragua 
and a part of that of Honduras belonged to Costa Rica. 



^ ToRBES DE Mendoza. ' ' ColeccioTi de documentos ineditos de Indias puUi- 
cada bajo los auspi'cios del Oohierno Espanol.''^ 

Peralta. " Costa Rica, Nicaragua y Panama, en el siglo xvi, Madrid, 
1883," pp. 101, 113, 741 to 754. Leon Fernandez. " Coleccion," &c., 
vol. iv, p. — . 



22 

Such was the original province of Costa Rica. 

From 1560 to 1573 Phillip II gave her new limits, which, 
on the Atlantic side, were the same now claimed by this Re- 
public. 1 

The province of Nicaragua was made a Government and 
entrusted to the command of Pedrarias Davila by Royal Let- 
ters-Patent of June 1, 1527 ; but no limits were then assigned 
to it, nor were those suggested by Pedrarias approved of by 
the Court. According to Fernandez de Oviedo those limits 
extended from the port of La Herradura, 9° 38' north lati- 
tude, to' the port of La Posesion (or Realejo), 12° 30' of the 
same latitude. But previous to 1540 it was generally thought 
that the limits of Nicaragua were from the Chiriqui plains to 
the Gnli of Fonseca. These boundaries gradually became 
reduced through the creation of the new provinces of Costa 
Rica (on the side of the Southern Sea) and of Nicoya, which, 
from the condition of a simple " encomienda " granted to 
Pedrarias Davila and his successor and son-in-law, Rodrigo 
de Contreras, was raised to the station of an independent 
Mayoralty or " Corregimiento." 

On the side of the Northern Sea, Nicaragua did not pos- 
sess, before 1543, an inch of land. 

The Province of Nicoya consisted of the peninsula of that 
name, and was situated between the Gulf of Nicoya and the 
Tempisque, or Del Salto river, and the Pacific Ocean, ex- 
tending itself towards the north up to the shores of the Lake 
of Nicaragua. 

Of the condition of Nicoya as an independent Mayoralty 
abundant testimony is given by different • royal ordinances 
and by the chronicler Antonio de Herrera,^ who says : 
" The following mayoralties are provided for by His Majesty, 
namely : El Cuzco, the La Plata city, and the mining seat of 
Potosi, * * * the Province of Nicoya P &c. 



'Peralta. '■'■ Costa Bica, Nicaragua y Panama,^'' &c., p. 500. 
^ Descripcion de las Indias Occidentales, chap. 31. 



23 

Herrera -wi'ote in 1 599, or thereabouts. 

The " Eecopilacion " of Liws for the Indies (Law 1, Title 2, 
Book 5) refers to the District of Nicoya as being an " Alcal- 
dia Mayor " or district under the jurisdiction of a Judge of 
first instance, it being equal in this respect to Chiapas and 
San Salvador, ancient provinces of the Captaincy-General of 
Nicaragua, "which, subsequent to their emancipation from 
Spain in 1821, freely disposed of their destinies, Chiapas 
annexing itself to Mexico, and San Salvador becoming one of 
the five States of the Federal Republic of Central America. 
Nicoya declared her will to be incorporated into the State of 
Costa Rica. 

The final incorporation of Nicoya or Guanacaste into Costa 
Rica, which took place in 1824, has several historical ante- 
cedents. 

Don Antonio Gonzalez, President of the " Audiencia " or 
Superior Court of Guatemala, appointed, in 1572, Perafan 
de Ribera, Governor of Costa Rica, to be the mayor or 
" correjidor " of Nicoya. ^ 

Herrera, the chronicler, gives an account of this incorpora- 
tion in Chapter XIII of his "■JDescripcion de las Indiasf and 
it also appears from the important document which Herrera 
consulted and which, under the title of " Demarcacion y 
Division de las Indias " (Demarcation and Division of the 
Indies), has recently been published. It reads as follows : 

" And Nicoya, forty-eight leagues from tli ; city of Granada, 
on the coast of the Southern Sea, a mayoralty (corregimiento), 
composed of Indians, which, together with the Island of 
Chira, within its jurisdiction, eight leagues from the coast, 
contains about 4,000 natives paying tribute to the Crown, 
who formerly, and up to the year 1573, were subject to the 
" Audiencia " of Panama, for the reason that they had been 
pacified by captains appointed by that court. But in 1573, 
Nicoya was incorporated into Costa Rica, the Governor of 



' Pekalta. '■'■Qosla Biea, Nicaragua y Panama" «&c., pages 474 and 480. 



u 

which sends a lieutenant there. " The Bishop of Nicaragua 
has there a vicar. Mcoya has a tolerable good port."^ 

Philip II appointed in 1573 Diego de Artieda, and in 1593 
Don Fernando de la Cueva, Governors of Costa Rica and 
" Alcaldes Mayores " of Nicoya. In this way Nicoya became 
in fact a part of Costa Kica.^ 

In 1665 Don Juan "Lopez de la Flor, Governor of Costa 
Rica, asked the mother country for the final annexation 
of Nicoya to the Province of his command. The King re- 
ferred his petition to the Bishop of Nicaragua and to the 
" Audiencia " of Guatemala. The Fiscal thereof (crown so- 
licitor) reported in favor of the annexation. 

Nicoya retained, however, some kind of autonomy, and 
was absolutely independent from Nicaragua in executive mat- 
ters to such an extent that, according to a Boyal ordinance 
of November 24, 1692, the appointment of its " Alcalde 
Mayor " was to be made directly by the King and not by the 
Audiencia, which could only provide for that position ad 
interim in case of vacancy.^ 

This constant separation of Nicoya from the Province of 
Nicaragua continued to exist in the middle of the XVIIIth 
century, as is shown by the " Relacion de la Visita Apostolica, 
topografica, historica y estadistica del Ilnio. Senor Don 
Pedro Agustin Morel de Santa Cruz, Obispo de Nicaragua, 
Costa Rica y Nicoya." (Report of the Apostolic, topo- 
graphic, historical, and statistical visitation made by the 
Most Illustrious Bishop of Nicaragua, Costa Rica y Nicoya, 
Don Pedro Augustin Morel de Santa Cruz). 



' Herrera. Descripdon, &c. , chap. xiii. 

Torres de Mendoza. Goleccion de Dooumentos, &c, vol. xv, p. ,409. 

Peralta. Costa Bica y Colombia de 1573 d 1881, pp. 50 and 56. 

^ Peralta. Costa Rica, Nicaragua y Panama, pp. 497, 512, 648. 

Torres de Mendoza. Ubi supra. 

Fernandez. Colecdbn, vol. v, p. 55. 

Biblioteca Nacional de Madrid. Manuscritos, Codice J., 15. 

^ Archivo de Indias de Sevilla. Registro de Reales Cedulas. Cartas y 
Expedientes delPresidente y Oidores de la Audiencia de Guatemala, file from 
1694 to 1696. 



25 

Bishop Morel enumerates the towns induded ifi each one 
of the three proAances of his diocese in the following way : 

The Province of Costa Eica consists of the following 
towns : Cartago, Laborio, Quircot, Tobosi, Coo, el Pilar, 
Ujarras (Curredabat), Asserri, la Yilleta, Pacaca, Curru- 
jiiqui, Barba,' Esparza, Canas, Bagaces, Boruca, Terraba, 
Cabagra, Atirro, Pejivai, Jesus del Monte, Tucurrique, and 
Matina." " These are," he saj'S, " the towns which I have 
seen and the roads which I have travelled. 

The Province of Nicoya, although one of great territorial 
extent, scarcely has more than two towns, one of which is the 
town of Nicoya and the other Cangel. 

The Province of Nicaragua, which is the third one of this 
Diocese, consists of the following towns : Villa de Nicaragua, 
Ometepe island, Granada, Aposonga, San Esteban, Popo- 
yapa, Potosi, Ampompua, Obrage, Buena Vista, San Antonio, 
Nagualapa, Chiata, los Cerros, San Juan de Tolu, Apataco, 
Espana, Diria, Dinomo, Nandaimes, Jinotepe, Diriamba, Ma- 
satepe, Naudasmo, Jalata, Niquinohomo, Santa Catarina, 
San Juan, Masaya, Nisidiri, Managua, Namotiva, Mateare, 
Nagarote, Subtiada, Leon, y Pueblo Nuevo, &c., &c., &c. 

"7%e Diocese is as vast, Bishop Morel further says, as 
results from the 'aggregation of the three ahove-namecl Prov- 
inces." 

The Episcopal See was Leon. In Cartago, the Capital of 
Costa Bica, there was a vicar. In the Province of Nicoya 
there was none ; but at the time of the visitation, the priest, 
Don Tomas Gomez Tenorio, was appointed to fill that position. 

Bishop Morel's report enjoys so much credit at Nicaragua 
that the Government of that Republic directed it to be sent 
to the historian, Hubert H. Bancroft, in order that he might 
use it for his " History of the Pacific States of North 
America." 

Engineer Don Luis Diez Navarro, in his " Relacion del 
Reino de Guatemala " (Report on the Kingdom of Guate- 
mala), addressed to his superior, the General of the Engineer 
Corps, Marquis of Pozo Blanco, says the following : 



26 

" On the 19tli of January, 1744, I reached the mountain 
of Nicaragua, a very rough one, which marks the end of the 
province of that name, and I went up as far as I explained 
in the report of my former trip, and I entered the juris- 
diction OF NicoYA, which, although an "Alcaldia Mayor," 
separate from the Government of Costa Rica, is reputed to 
helong to this province.''^ 

The latter assertion seemed to be so unanswerable to the 
same Diez Navarro as to cause him to repeat it affirmatively 
in another of his papers, where he says that the coast of 
Costa Rica on the Southern Sea extends to the port of San 
Juan, two leagues far beyond the La Flor River, which is 
the boundary of Nicoya. 

Upon these facts, the Spanish Cortes of 1812, then the 
legitimate and sovereign power in Spain, directed the district 
of Nicoya, afterwards called Province of Guanacaste, to be 
annexed to the Province of Costa Rica. United in this way, 
Costa Rica and Nicoya were called to perform together the 
most important function of the civilized nations, the exercise 
of their sovereign rights by means of suffrage ; and the two, 
made one for political purposes, were caused to elect one rep- 
resentative to be sent to Spain, to the Cortes, and another to 
be sent to the local legislature, or provincial deputation, 
created at Leon, Subsequent to that time Nicoya ceased to 
appear as an individuality different from Costa Rica, and 
the local legislature was simply designated as " Provincial 
Deputation of Nicaragua and Costa Rica." 

Such was the basis of the political union of Nicoya and 
Costa Rica, and such the situation of Nicoya was when the 
provinces of the Captaincy-General of Guatemala proclaimed 
their independence from Spain. 

The declaration of independence was signed at Guatemala 



^ " Bescripcion del Reino de Ouatemala,^^ printed at Guatemala, 1850. 
Molina. Bosquejo de Costa Rica. New York, 1850. 
British Museum. Spanish Manuscripts, add. 17,566. 
Deposito hidrografico. Madrid. 



27 

on the 15th of September, 1821, without the distant provinces 
knowiiis:; anything}; abont that happ}^ event which rendered 
them free, without costing them a drop of blood or a single 
effort. The information of what had happened reached them 
from Guatemala, and they did not take long in making use of 
their freedom. Some of them proclaimed their annexation 
to Mexico, under the imperial sceptre of Iturbide, and elected 
deputies for the Cortes of the new Empire. Others chose to 
form a Federal Republic, and all of them except Chiapas, 
which remained attached to Mexico, even after Iturbide's 
fall, sent representatives to a constituent assembly, which 
met at Guatemala, and createdthe Federal Republic of Cen- 
tral America under the political constitution of November 22, 
1824. 

Nicoya, which found itself in an anomalous position be- 
tween Nicaragua and Costa Rica, took advantage of the cir- 
cumstances, followed the example of its neighbors, and, by 
an act of its free and spontaneous will, asked for its annexa- 
tion to Costa Rica in 1824. 

The Assembly of the new State of Costa Rica accepted the 
incorporation of Nicoya, subject, however, to what the Fed- 
eral Congress should deem best to decide ; and the Federal 
Congress, by decree of December 9, 1825, approved it and 
ordered it to be carried out ; the grounds of this decision be- 
ing that the authorities and the municipal bodies of the Dis- 
trict of Nicoya had repeatedly requested the separation of 
Nicoya from Nicaragua and its annexation to Costa Rica, 
and also that the residents of Nicoya had actually effected 
the said incorporation during the political troubles of Nica- 
ragua, and, furthermore, that so it seemed to be required by 
the topographic position of the district. ^ 

Subsequently to this period, and in spite of the threats 
and pretensions of Nicaragua, the people of Nicoya have 



- See Document No. 2. 

Peralta. El canal interoceanico, Brussels, 1887, p. 64. 



28 

maintained their firm decision to continue to be a part of 
Costa Rica. In 1836 they repelled by force a Nicaraguan 
invasion under the leadership of Manuel Quijano. 

In 1838, when the Federal Republic was dissolved, in the 
midst of the confusion and agitation which caused the 
National Congress to take the desperate step of breaking the 
compact of 1824, the Province of Nicoya or Guanacaste felt 
once more the necessity of again emphatically expressing its 
desire to remain united to Costa Rica, and, by new acts, it 
renewed its annexation. 

The Government of Costa Rica, on its part, has always 
performed the duties which the incorporation of Nicoya into 
its territory imposed on it. It has paid the portion of both 
the colonial domestic debt and the debt contracted by the 
Federal Republic, which belonged to Nicoya. It has given 
Mcoya peace, schools, and roads. It has sheltered it from the 
commotions which have afflicted Nicaragua. It has defended 
it. It has protected it against all aggressions and threats. 

In 1842 the Congress of Nicaragua authorized the execu- 
tive power to incorporate in fact the district of Guanacaste 
(Nicoya) into the territory of Nicaragua. The Government 
of Costa Rica looked at this decree as a declaration of war, 
proclaimed that Guanacaste was an integral part of its terri- 
tory, and prepared itself for its defence. But Nicaragua did 
not stand by her provocation. 

In 1848 representatives of Nicoya signed the constitution 
of the " Republic of Costa Rica," when Costa Rica deemed 
it advisable to take this name and cease to be called a " State " 
of a confederation which had ceased to exist ten years before. 
The citizens of Nicoya (Guanacaste) ratified, furthermore, 
their ancient annexation to Costa Rica. In 1856 Costa Rica 
maintained its rights and the integrity of its territory, invaded 
at Guanacaste, and repelled the invaders, and co-operated 
efficiently in expelling them from the Nicaraguan territory. 

In 1857 Nicaragua attempted again, by means of a decree, 
to regain the eminent domain and sovereignty over Guana- 



29 

caste ; but, by another decree of October 27, 1857, she was 
pleased to declare that she would not oppose the inhabitants 
of Guanacaste to remain subject to the Government of Costa 
Erica, should they deem it advisable. 

The validity of the last decree has been sanctioned by the 
accomplished facts ; and the inhabitants of Guanacaste re- 
main yet, because it is advisable for them to do so, under 
the sovereignty of Costa Rica. 

Such were the facts and the law in 1858, before the cele- 
bration of the treaty of limits between Costa Rica and 
Nicaragua. 

On April 15, 1858, the said treaty was signed, and by it 
Nicaragua finally re-acknowledged that the district of Nicoya 
was included within the territory of Costa Rica. 

This is the treaty, the validity of which the Government 
of Nicaragua comes now to contest, after fourteen years of 
faithful execution on both sides. . 



Chaptee II. 

THE SAN JUAN RIVEK DUKING THE SPANISH EULE. 

The San Juan river, also called Desaguadero (outlet), never 
belonged exclusively and in all its length to the Province of 
Nicaragua. Until 1539 it had not been explored or navigated 
as far as the sea, and then the Province of Nicaragua was 
understood to be the narrow strip running between the South- 
ern Sea and the " fresh-water lake of the city of Granada," 
that is, the Lake of Nicaragua. 

In the above-cited year of 1539 Alonso Calero and Diego 
Machuca de Zuazo, in compliance with the desires of the 
court, which had repeatedly invited the investigation of the 
secret of the outlet of the fresh-water sea, had the fortune and 
the glory of finding the mouth of the San Juan river, and 
pags through it into the Northern Sea.^ 

It was with abundant reason that Captain Calero, by letter 
addressed by him to the King,^ reminds His Majesty that the 
undertaking to which he had given so successful a termination 
required some reward, and complains that, instead of receiv- 
ing it, he had been wronged both by Rodrigo de Contreras, 
the Governor of Nicaragua, and by Doctor Robles, " Oidor " 
(Associate Justice of the Royal Court) at Panama, each one 
of whom, he said, was trying to derive profit from what had 
cost them nothing. 

Dr. Robles, on his own part, allotted to his son-in-law, 
Hernan Sanchez de Badajoz, all the lands adjoining the San 
Jnan river, or " Desaguadero," and entered with him into an 
agreement for the pacification and submission of the natives, 
the limits described in the instrument having been from 



^ Peralta. Conta Rica, Nicaragua, y Panama, p. 728 and the following. 
"^ Ibid., page 94. 



31 

the Dukedom of Veragua to the boundary of Honduras, or 
Guaymura. ^ 

On the other hand, the " Council, Justices, and Board of 
Aldermen " (Concejo, Justicia y Regimiento) of the city of 
Leon, under date of May 25th, 1540, ^ in making opposi- 
tion to the pretension of Doctor Robles, gave clear evidence 
that the " Desaguadero " and adjoining lands did not belong 
at that time to the Government of Nicaragua. Here are 
their own words : 

" We request Your Majesty to take into consideration that 
the inhabitants of this province, since its discovery, and 
always, have been incurring expenses for finding out the 
secret of the outlet (Desaguadero), and of the lands adjoin- 
ing it, and that they will continue to do the same until the 
secret is discovered ; and not to allow either the Governor 
of Veragua, nor Doctor Robles, nor any other person whom- 
soever, except the Governor of this Province, or his Captains, 
and the residents or inhabitants of the same, to inter- 
fere with, or attempt to take away from this province, what 

IS so NEAR AND CLOSE TO IT, AND HAS COST IT SO MUCH," &C., &C. 

But there was another party having an interest in the mat- 
ter, and that was Diego Gutierrez, the Governor of the Prov- 
ince of Cartago (now Costa Rica^), who asked for him, exclu- 
sively, the right to populate and reduce to submission the 
two banks of the " Desaguadero," because this and the lands 
adjoining it were found within the limits of his command. 
In support of his petition. Governor Gutierrez referred to the 
articles of agreement^ he had entered into with the Crown 
on November 29, 1540, wherein the limits of his jurisdiction 
had been fixed by saying, " from the limits of the Dukedom 



^ See Letter of Dr. Robles to Cardinal Sigiienza, and the Council of the 
Indies. 

Peralta. Costa Riea, Nicaragua, &c., p. 741. Royal Letters-patent to 
Rodrigo de Contreras. Ibid., p. 747. 

^ Peralta. Ibid., p. 97, and the following. 

'Pebalta. Ibid., p. 89. 



32 

of Veraguas to the Eio Grande river, on the other side of 
Cape Camaron." The Desaguadero evidently remained in- 
cluded, under these circumstances, within the limits of his 
government. 

The King set at rest all these differences by his celebrated 
Eoyal " Cedulas " or " ordinances," issued at Talavera on the 
11th of January and 6th of May, 1541, and at Yalladolid on 
the 14th of May of the same year. 

In consequence of these decrees the river was divided into 
two parts. The upper part, 15 leagues long, from its outlet 
or origin from the lake down, was adjudicated to the Province 
of Nicaragua ; and the lower part, from the end of the above 
to the mouth of the river on the Northern Sea, was declared to 
belong to the Government of Costa Eica. And, as far as the 
use of the whole river and of the lake for the purposes of 
navigation and fishing was concerned, it was provided that 
both the river and the lake should be oommon for the two 
provinces, without any distinction. 

And in order to prevent the Governor of Nicaragua from 
making opposition to this, the Council of the Indies and 
the King himself ratified and affirmed it, and declared that 
the penalty of removal from office and a fine of one hundred 
thousand " maravedis " should be incurred by any one at- 
tempting to go against it. ^ 

Diego Gutierrez was succeeded in the government of Cartago, 
or of the " Desaguadero " as the Bishop of Nicaragua, Fray 
Antonio de Yaldivieso, also calls it, by Juan Perez de 
Cabrera ; and the Eoyal Commission, signed at Valladolid 
on the 2 2d of February, 1549, contains the same provisions 
as to limits. 

But the pacification of Cartago, or "El Desaguadero," was still 
to be accomplished. And , in order to accomplish it, the Crown 
decreed that Licenciate Ortiz, appointed "Alcalde Mayor " 
of Nicaragua, should take charge of the colonization of " A 



'Peralta. Ibid., pp. Ill, 113, and 128. 



33 

CERTAIN LAND WHICH IS FOUND BETWEEN THE PROVINCE OF NIC- 
ARAGUA AND THAT OF HONDURAS AND THE DeSAGUADERO OF THE 

said frovince, towards the cities of nombre de dios and 
Panama, between the Southern and the Northern Seas." 
The instructions communicated to that effect to Licenciate 
Ortiz were dated at Toledo on the 23d of February, 1560.^ 

Ortiz could not fulfil his mission, and the " Audiencia " 
(Eoyal Court) of Guatemala, on May 17, 1541, by order of 
the King, appointed Licenciate Don Juan Cavallon to be 
" Alcalde Mayor " of the Province of New Cartago and Costa 
Rica, and described the limits of his jurisdiction as follows : 

" As FAR AS THE BOUNDARY OF THE CITY OF NaTA AND ITS JURIS- 
DICTION, IN THE Kingdom of Tierra firma, otherwise called 
Castilla del Oro, and then along this line to the limits 
OF the Dukedom of Veragua, and from the Southern Sea 
to the Northern Sea up to ' El Desaguadero,' this being 
included." 2 

The same limits were marked down to Cavallon's succes- 
sor, Juan Vazquez del Coronado ; and the jurisdiction given 
him over that territory was confirmed by the Crown in Royal 
ordinances of April 8 and August 7, 1565.^ 

Vazquez de Coronado, who was " Alcalde Mayor " of Nic- 
aragua and of Costa Rica about the year 1563, reduced to 
submission and placed under the jurisdiction of the Province 
of Costa Rica the Catapas Tices and Votos Indians who in- 
habited the shores of the Lake of Nicaragua and the banks 
of the outlet.^ 

Upon the death of Vazquez, the King appointed Perafan 
de Rivera Governor and Captain-General of Costa Rica, and 



^Peralta. Ibid., p. 170. 

^ Peralta. Ibid., p. 194. 

Pekalta. The Eiver of San Juan de Nicaragua, in Ex. Doc. Senate No. 
50, 49th Congress, 2d Session, pp. 36-42. 

^ Peralta. Costa Rica, &c. , pp. 378 and 387. 

* Peralta. Costa Rica, &c. Letter or report of J. Vazquez de Coro- 
nado, pp. 230, 764, 766, 768. 
3 



34 

the limits of his command were described by Royal ordinance 
of July 19, 1566, issued at Bosque de Segovia, exactly in 
identical terms as they had been marked down in Vazquez's 



commission 



1 



It appears, also, that among the distributions, " repartimi- 
entos," of Indians, made by Rivera, there was one which 
referred to the Botos, or Yotos, Indians, who inhabited the 
banks of the " Desaguadero," and are mentioned in the 
" Relacion del descubrimiento " (account of the discovery) of 
the river, to which I have alluded. The act was done at 
Cartago on the 12th of January, 1569. 

In 1573 articles of agreement were signed between the 
Crown and Diego de Artieda, who was appointed Governor 
and Captain-General of Costa Rica, wherein the limits of his 
government were described as follows : " From the Northern 
TO THE Southern Sea in width, and in length from the 

BOUNDARY OF NICARAGUA, ON THE SIDE OF NiCOYA, RIGHT TO THE 
VALLEYS OF ChIRIQUI, DOWN TO THE PROVINCE OF YeRAGUA ON 
THE SOUTHERN SIDE, AND ON THE NORTHERN SIDE, FROM THE MOUTH 
OF THE OUTLET WHICH IS TOWARDS NICARAGUA, THE WHOLE TRACT 
OF LAND AS FAR AS THE PROVINCE OF YeRAGUA."^ 

In regard to the extent to be given to the mouth of the 
outlet, the Royal Letters-Patent and Ordinances above cited 
explain it sufficiently : " As far as El Desaguadero, inclu- 
sive,'' says the Royal Letter to Lie. Cavallon, the real con- 
queror of Costa Rica. 

From 1573 to 1821, in which last date the power of Spain 
ceased, no alteration was made by the Crown in the limits of 
Costa Rica on the side of the outlet, although the Governors 
of Costa Rica exercised on different occasions acts of juris- 
diction on the cost of Mosquitia. 

The principal towns of the Province were founded in the 



^Peralta. Ibid.^ p. 411. 
^Peralta. Costa Rica, &c., p. 497. 
Torres de Mendoza, Coleccion de Documentos ineditos. 



35 

interior of the country, but the Governors were careful to ex- 
ercise jurisdiction over the whole territory intrusted to them. 
This is shown, among many other things, b}^ the record of 
the possession taken of the Votos Indians, a ceremony which 
was performed on the right bank of the Desaguadero, at the 
place named " El Real de los Votos," on the 26th of February, 
1640. It reads as follows : 

" And on the 26th of February of the said year, the said 
Captain Jeronimo de Eetes arrived with the said infantry to 
the house of the said Cacique, whom he found to have with 
him, called to that effect by him from different parts, eighty 
persons of all classes and ages, natives of the country, and 
among them thirty Indians ; and through the interpreter, 
Diego Latino, an Indian guide, who had been taken from this 
city, and speaks and understands the language of the said 
Votos Indians, the said Cacique said to the said Captain 
Jeronimo de Retes, that in obedience to his orders and trust- 
ing to his word, such as he had understood it through the 
said Indian Pisirara, he received him in peace, and by an act 
of his free will, without duress or coercion of any kind, he 
acknowledged for himself and for all the other people, native 
Votos Indians, both present and absent, the allegiance which 
he owes to the King, Our Lord, as was owed and acknowl- 
edged by their forefathers ; and he promised to be a faithful 
vassal, in order that the Holy Gospel should be preached to 
them, and to continue to be faithful. And this having been 
heard by the said Captain Jeronimo de Retes, who listened 
to the reasonings of the said Cacique Pocica, accepted in the 
name of the King, Our Lord, the said allegiance, which was 
offered and given, and took actual and bodily possession of the 
rights of sovereignty on these and all the other native Votos 
Indians of the province. This was said through the interpreter 
to the said Cacique, and he promised again and reiterated the 
said allegiance." (Coleccion de Documentos para la Historia 
de Costa Rica, by Licenciate Don Leon Fernandez. San Jose 
de Costa Rica, 1882, Vol. II, pp. 226-27). 



36 

Betes did this by commission of the Governor of Costa 
Eica, Gregorio de Sandoval. 

By virtue of orders and decrees enacted by the King of 
Spain, subsequent to the instructions given by Licenciate 
Ortiz, a tract of land, fifteen leagues in extent, adjoining the 
left bank of the " Desaguadero," was segregated from the ju- 
risdiction of Costa Bica ; but the whole land which runs from 
sea to sea, from the southern bank of the river up to Mcoya, 
in latitude, and in longitude from the Southern Sea to the Es- 
cudo de Yeragua and the Chiriqui plains, east of Punta Bo- 
rica, was left to it. 

In regard to the waters of the river and the lake, the use 
thereof was not exclusively given either to Nicaragua or Costa 
Bica, and in this respect, as was natural, all that had been 
previously decided about the community as to the rights of 
navigation and fishing in favor of the two bordering prov- 
inces, on both the river and the lake, was left in force. 

In the above-cited " Descripcion de las Indias Occiden- 
tals " (E lition of 1730, p. 25), a map of Costa Bica, Mcoya, 
and Nicaragua is found ; and there it appears that the De- 
saguadero river is the border line between Costa Bica and 
Nicaragua on the side of the Northern Sea. A copy of this 
map has been appended to this argument. 

Numerous ancient documents confirm the right of Costa 
Bica over the right bank of the San Juan river and its waters, 
the principal among them being the commission given by 
Velasquez Bamiro, " Visitador " and Juez de Besidencia " 
(judge appointed to investigate the action of the superior 
colonial authorities for the Provinces of Costa Bica and 
Nicaragua), to Antonio Perera and to Francisco Pavon to 
explore the communication of the two seas (1591) ; the re- 
port of Diego de Mercado to the King upon the same sub- 
ject (1620) ; the report made by Don Bodrigo Arias Maldo- 
nado, Governor of Costa Bica, to the King, on the towns of 
his Province (1662) ; the letter of Don Juan Lopez de la Flor 
to His Majesty upon the subject of the occupation of the 



37 

castle by the English enemy (1G70) ; the reports of Don 
Jiian Francisco Laens to the King, making a geographical 
description of Costa Rica and suggesting the means of de- 
fending it (1675), etc., ctc.i 

In accordance with these documents, Juarros, the historian 
of the Kingdom of Guatemala, described the limits of Costa 
Rica on the side of the Northern Sea by saying " from the 
month of the San Juan river to the Escudo de Veraguas.''^ 

In this description all the geographers as well as all the 
cyclopredias, especially the British, fully agree. 

Both the sixth edition of the British Cyclopaedia (the first 
one published after the Independence, some rime between 
1826 and 1830) and the last one, recentlj^ published, of this 
conscientious repository of human knowledge, prove this 
fact. 

It will be seen, therefore, that, during the Spanish rule, 
Costa Rica was first the exclusive owner of the lower half of the 
river and of the neighboring lands on both sides all along the 
whole extent of the said half ; and, subsequently, it was exclu- 
sive owner of the river and of its southern bank, without 
prejudice to the right that Nicaragua had to navigate and fish 
in the river, and which Costa Rica had, also, in the same 
river and in the lake, all of which has been shown by irre- 
futable documents. „ 



^ All these documents can be found in the above cited work of Senor 
Peralta. 

See also the work of the same author, The River of San Juan de Nicara- 
gua, &c., previously cited and translated in Executive Doc. No. 50, Senate, 
49th Congress, 2d Session, January, 1887. 

- Vol. 1, part 1, chap. iii. 

' The right of navigation was confirmed in favor of Costa Rica by Royal 
ordinance, dated at Aranjuez February 6, 1796. 



Chapter III. 

THE SAN JUAN KIVEK FROM 1821 TO THE DATE OF THE TREATY OF 1858. 

If, during the colonial regime, the San Juan river, other- 
wise called " Desaguadero," did not belong exclusively to 
Nicaragua, it was less hers afterwards. 

The Constitution of Costa Rica of January 21, 1825 (Art. 
XV), explicitly declared that the limit of the national terri- 
tory on that side was the mouth of the San Juan river ;^ and 
such was the territory which was acknowledged to belong to 
that State by the Republic of Central America, without a 
voice of dissent or contradiction having been raised against 
it either at the Federal Congress or at the bordering State. 

This declaration was afterwards repeated and ratified in 
all subsequent constitutions of Costa Rica.^ 

Nicaragua enacted her Constitution one year after Costa 
Rica, in 1826, and marked as her frontier, on the Costa Rican 
side, the same which had existed during the Spanish rule, 
when the two countries were provinces of Spain. There was, 
therefore, between the two Constitutions, in regard to this 
point, the most perfect accord. 

The pretension of Nicaragua to extend her frontier beyond 
the San Juan river was an afterthought which came to her 
mind long afterwards, and which originated in the idea of 
getting some compensation for the alleged loss she had sus- 
tained by the annexation of Nicoya to Costa Rica. Had the 
latter event never happened, surely Nicaragua would never 
have thought of denying Costa Rica its rights on the San 
Juan river. 

The fact that an ancient fortress named " Castillo Yiejo " 



^ See Document No. 63. 
"■ Doc. No. 63. 



/ 39 

(old castle), now possessed by Nicaragua, stood on the 
southern bank of the river has been alleged as a ground 
for the claim of that country to exclusiv*? jurisdiction on the 
said bank and on the river itself. 

But to do so, it is indispensable either to forget history or 
to ignore the facts recorded by it. 

What power, what authority, what jurisdiction could the 
Nicaraguan authorities exercise over that fortress when it was 
under the control of the Captain-General of Guatemala, who 
built it by order of the King and at the expense of the pub- 
lic treasury of the Kingdom of Guatemala, who repaired it 
when necessary, and who always kept it under his authority, 
putting it in charge of wardens and Alcaldes directly appointed 
by the King ? 

What power, what authority, what jurisdiction did the 
Governor of Nicaragua ever exercisd over that fortress, when 
by express decision of the Council of the Indies it was de- 
clared that the fortress and its warden should be subordinate, 
not to the Governor of Nicaragua, but to the Captain-Gen- 
eral of Guatemala ? ^ The Governor of Nicaragua did not 
even supply it with provisions, which duty was incumbent 
upon the Governor of Cartago, as stated by Bishop Morel. ^ 

When that Reverend Prelate visited the castle, and wanted 
to introduce in it certain reforms, he addressed the Governor 
of Nicaragua ; but the latter answered at once that he had 
nothing to do with that fortress. Then the Bishop turned 
his eyes to Guatemala, and there his representations were 
listened to and decided favorably. 

The agreement entered into between the Crown and Diego 
de Artieda is a document of such a strength as to have pre- 
vented Nicaragua from denying that the outlet, or " Desagua- 



' Archives of ladies, of Seville. " Secretaria de Nueva Espana." Guate- 
mala. Letters aad records of secular persons. Years 1726-1736. 
Peralta, El rio San Juan, &c. , p. 20. 
Ex. Doc. Senate, No. 50, above cited. 
'^This is shown by the " Gaceta de Nicaragua " files of 1874. 



40 

dero," is the limit between the two Republics. But Nicara- 
gua tries to escape from the difficulty by claiming, without 
foundation, that ther outlet, or " Desaguadero," and the " San 
Juan river " are not one and the same. 

In connection with this aspect of the question the Nicara- 
guan Foreign Office, presided over by Don Anselmo H. Rivas, 
expressed itself on June 30, 1872, in the following language : 

" Your Excellency says that the Colorado river belongs to 
Costa Rica, not only under Art. II of the treaty of limits, but 
under the colonial charter issued by King Philip II at Aran- 
juez, on the 18th of February, 1574, which established the 
boundary of the Government and Captaincy-General of the 
Province of Costa Rica, as running from the mouths of the 
outlet ' Desaguadero ' on the Atlantic (Rio de San Juan) to 
the Province of Yeragua." * * * 

" As to the Royal charter of Philip II, to which Your Ex- 
cellency refers, it is a proven fact that Costa Rica cannot 
claim that its boundary goes as far as ' the mouth of the San 
Juan river,' which Your Excellency wishes to confuse with 
' the mouths of the outlet, " Desaguadero," ' things which some 
other Royal orders, several historians and geographers, and 
even the tradition of the country, have proved to be different. 
Never has the San Juan river or its mouth been designated 
by names different from those which they have at present." 
* * * 

" Let this be said solely to prove that the claims of Costa 
Rica to the waters of the Colorado river and the adjoining 
territory cannot be traced back to the antiquity which Your 
Excellency wishes to attribute to them, but that they are 
founded only on the treaty of limits of 1858." 

The predecessor of Senor Rivas in the Nicaraguan State 
Department, Licenciate Don Tomas Ayon, author of a " His- 
tory of NicaraguayVo/;! the times of the Conquest^'' said, also, in 
a pamphlet published a few days before the foregoing des- 
patch of Senor Rivas, what I now transcribe, namely : " Which 
are the mouths of the ' Desaguadero ? ' Laws, historians, geog- 



41 

raphers, all, iu one word, have, since the days of the dis- 
covery, given the name of ' San Jnan de Nicaragua river ' to 
the stream which Ave know now by the same name. No one 

CALLED IT 'THE DeSAGUADERO,' NOR HAS THE STREAM EVER 

HAD MORE THAN ONE MOUTH. It is, therefore, evident that 
the point called by the Royal charter ' the mouths of the 
" Desagnadero " ' cannot be the mouth of the San Juan river, 
and certainly that point has to be found far beyond the 
Colorado river." * * * 

It is trul}^ astonishing that persons so enlightened and up- 
right as Senores Eivas and Ayon should have used, in a dis- 
cussion like this, an argument so much at variance with his- 
torical truth, and the most elementary notions of ancient and 
modern geography. 

Senores Don Anselmo Hilario Rivas and Pon Tomas Ayon 
affirmatively state that the San Juan river and the "Desagna- 
dero" are two different things ; but the fact that they are the 
same thing is witnessed by the Royal ordinance of Valladolid 
of September 9, 1536, ^ which ordered the exploration of the 
outlet, Desaguadero, of the Lake of Granada, by the writings 
of Calero and Machuca, who made that exploration ; by the 
Council, justices, and aldermen (Concejo, justicia y regi- 
miento) of the city of Leon ; by all the Governors of Nicara- 
gua, and by all historians and geographers from Pedrarias 
Davila to Senor Ayon.^ 

Engineer Don Luis Diez Navarro says : " The three 



'Archives of Indies of Seville. Audiencia of Guatemala, Nicaragua. 
Register of Royal Ordinances. 

Peralta. Costa Rica, Nicaragua, &c. , p. 116. 

"^ Torres de Mendoza. Goleccion, &c. 

ToKQUEMADA. Monarqiiia Indiana. 

Peralta. Costa Rica, Nicaragua, &c., pp. 58, 94, 97, 113, 147, 189, 191, 
559. 566, 641, 728, 752, and 754. 

Peralta. Costa Rica y Colombia. 

See in Alphabetical Index of Geographical Names : Desaguadero, San 
Juan de Nicaragua. 

Johnson's American Cyclopaedia ; word, San Juan River, &c. 



42 

mouths of the San Juan river are the outlet of the famous 
lakes of Managua and Ntcaragua. They are called San Juan, 
Taura, and Colorado. Said lakes empty through the same 
three mouths which connect at six or seven leagues, and form 
but one river." 

" From the first mouth, which is called San Juan, from 
west to east up to the second one, named Taura, there are two 
leagues ; from Taura to the third mouth, named Colorado 
river, there are six leagues ; from here to Matina, twenty. 
The rivers named Meventazon, or Ximenez, and Suerre, or 
Paeuare, which are large streams, are found between the 
three above rivers, and can be navigated towards the interior 
for more than ten leagues. ^ 

Col. Don Josef Lacayo, formerly Governor of Nicaragua, 
entirely agrees with Diez Navarro, as shown by his report on 
the Lake of Nicaragua, and the San Juan river (Relacion de la 
Laguna de Nicaragua y rio de San Juan), written in 1745. 
Lacayo affirms, furthermore, that, of the three branches of 
the San Juan river, the Colorado river is the most abundant 
in water, and is the most accessible, so that schooners and 
large vessels can easily enter it. 

Finally, Senor Ay on, in his "History of Nicaragua," re- 
futes both Senor Rivas and himself in four chapters of Vol. I 
of his work, wherein he gives the name of Desaguadero to 
the San Juan de Nicaragua river. ^ 

The voluntary errors of such learned statesmen as Senores 
Eivas and Ayon, who, without taking the trouble even of 
consulting a geographical dictionary, locate the mouth of the 



' Archives of ladies of Seville. Package, " Guatemala," correspondence 
of the Governors President, years 1758 to 1771. 

Description of the whole coast of the Northern Sea and part of that of 
the Southern Sea of the Captaincy-General of this Kingdom of Guatemala, 
made by Engineer Don Luis Diez TSTavarro in 1743 and 1744. 

Peralta. Costa Rica y Colombia, p. 178 (edition de luxe) and p. 162 (or- 
dinary edition). 

^ Manuscripts in the Deposito Hidrografico of Madrid. 

' See Document No. 62. 



43 

San Juan river, or Desaguadero, far to the south of the Col- 
orado, in the valley of Matina, at more than twenty leagues 
southeast of its proper place, have constituted the ground 
upon which the supposed rights of Nicaragua rest, and have 
given color to their pretension of exclusive sovereignty over 
the San Juan river and its southern bank. 

Long and troublesome was the discussion which took place 
between the two Republics, on account of this pretension, 
from 1838 to 1858, in which the signing of the treaty of lim- 
its seemed to have settled the question. 

According to that treaty the right bank of the river, from 
its origin in the lake up to a point three miles from Castillo 
Viejo, belongs to Nicaragua. From that point to the sea, 
down to Punta de Castilla, the whole right bank, as well as 
the delta of the river, belongs to Costa Rica ; but Nicaragua 
was given the. sovereignty over the waters. 

As it is seen, Costa Rica made a very important cession in 
favor of Nicaragua, and sacrificed for the sake of concilia- 
tion and fraternity a strip of territory two miles wide and 
more than one hundred miles long, from the neighborhood of 
Castillo Viejo up to near the mouth of the Sapoa river, de- 
viating thereby its boundary, to the grave detriment of its 
interests and territorial rights, from the shores of the lake 
and the banks of the river. ^ 

This treaty, in which Costa Rica is really the party who 
gives, because it has been proved that the alleged rights of 
Nicaragua lack foundation both in written history and inter- 
national law, was concluded, consummated, and complied with 
by both parties during fourteen years, and it still continues to 
be the rule or basis of the present territorial status quo ; but 
Nicaragua, not contenting herself with the advantages secured 
by her, fifteen years ago, and moved by the desire to enter into 



' See Executive Doc. No. 57, House of Reps., 49th Congress, 2d session. 
Mr. Reynolds to the President, p. 12. 



44 

contracts of interoceanic canals, right and left,^ without any 
restraint, decided to argue that the treaty was imperfect. 



^ In 1876, or early in 1877, the Government of Nicaragua was negotiating 
at the same time for the construction of an interoceanic canal with Hon. 
Hamilton Fish, Secretary of State, in Washington, with Mr. Henry 
Meiggs, in Lima, and with Mons. Aristide P. Blanchet, a notary in France. 
The Government of Costa Rica contented itself with informing the Gov- 
ernment of the United States, represented by the illustrious Gen. Grant 
and by Mr. Hamilton Fish, of its acceptance of the basis proposed by Mr. 
Fish. 



C H A P T E 1? I V. 

NEGOTIATIONS FOK THE SETTLEMENT OF THE QUESTION OF LIMITS, FEOM 
THE DISSOLUTION OF THE REPUBLIC OF CENTRAL AMERICA TO THE YEAR 
1858. 

During tlie whole Federal system (1825-1839) the question 
of Nicoj'a, which was the only one existing between Costa 
Rica and Nicaragua, remained in suspension. The circum- 
stances, indeed, were not favorable for the latter nation to 
invite discussion upon it. It was known that the unanimous 
opinion, as well as the resolute determination, of the inhabi- 
tants of Nicoya was to remain united to Costa Rica ; and, if 
the question would have been urged, the National Congress 
would have finally ratified the annexation. Such a result 
was so much the more to be apprehended as the credit 
which Costa Rica had won through its ability, prudence, and 
moderation in the discharge of its Federal duties, stood much 
higher than that of Nicaragua, which always, and at all times, 
had been the prey of all kinds of civil disturbances. 

As Nicaragua could expect nothing from the Federal power 
in reference to the separation of Nicoya, it was better for 
.her to keep silent. And owing to this, as well as to her an- 
cient rivalry with Guatemala, and for other reasons, her aim 
was then to destroy the Federation. All historians agree to 
the fact that Nicaragua distinguished herself in that respect. 

The Federation was dissolved in 1838 and 1839. The 
Nicoyans taking an advanced step in opposition to the pre- 
tensions of Nicaragua, and at the end of fourteen years of 
incorporation of its territory into Costa Rica, ratified by new 
acts their adhesion to Costa Rica. Upon the knowledge of 
this fact, and foreseeing that Nicaragua, which was then en- 
gaged in the revision of her Constitution, might perhaps 
insert in it some provision to the effect that Nicoya formed 



4:6 

part of her territory, and thus give occasion to some conflict 
between the two countries, Costa Rica decided to establish a 
Legation at Nicaragua, and sent there as its Minister one of 
its very first public men, Senor Don Francisco Maria Orea- 
muno. It was hoped in Costa Eica that Nicaragua should 
recede from her attempt to ignore the accomplished facts, 
especially when seeing the manifest decision of the inhabi- 
tants of Nicoya not to submit to her rule. Senor Oreamuno 
expressed the desire that the perpetual annexation of Gua- 
nacaste should be recognized by Nicaragua, and declared 
that his country was ready to defend the frontiers of the San 
Juan river, the great Lake, and the La Flor river. 

The Nicaraguan Government could not allow such repre- 
sentations to pass unnoticed, and resorted to the expedient 
of letting the matter remain in suspense. No conclusion 
was, therefore, reached, but the Revised Constitution ex- 
pressed that THE LIMITS OF THE COUNTRY SHOULD BE PIXED BY 
AN ORGANIC LAW, WHICH WOULD BE A PART OP THE CONSTITU- 
TION. It was avoided in this way, that the organic law of 
Nicaragua would contain a provision declaring that the dis- 
trict of Nicoya belonged to her. According to its own pro- 
visions, the fixing of the limits was left to an organic law, of 
secondary chnracter, to be enacted afterwards. The idea 
entertained by Nicaragua of the firmness and energy of the 
administration of General Carillo in Costa Rica helped, no. 
doubt, that result. 

It must be noticed particularly that the Constitution of 
Nicaragua of 1838 provided nothing permanently in regard 
to limits with Costa Rica. This is a fact of extreme impor- 
tance, as will be seen hereafter. 

In 1843 Nicaragua sent to Costa Rica a legation, in charge 
of Licenciate Don Toribio Tijerino, and this officer pre- 
sented a claim for the restoration of the district, together with 
its products and accessions, as might have been the case if 
the claim would have referred to a simple pledge. But he 
had not been given any authority to make or to entertain 



47 

any proposition of arrangement, and, as it" is easy to con- 
ceive, his mission did not bring forth any fruit. 

In 1846 Costa Rica had to pass through an exceptional 
crisis. Coffee, its principal export product, had experienced 
remarkable depreciation in the foreign markets, and could 
not stand competition, owing to the high freight that it had to 
pay when carried by the way of Cape Horn. It was of vital 
importance, and worthy of any sacrifice whatever, to have a 
passage open to the Northern Sea, that is, the Atlantic Ocean. 
The old port of Matina could not answer the purpose, owing 
to insuperable obstacles, and no recourse was left except 
making the exports through San Juan del Norte. 

As shown before, Costa Rica had always had a perfect and 
indisputable right of joint ownership in the San Juan river ; 
but, as the harbor and bay were then occupied by Nicaragua, 
Costa Rica decided to make an effort, and seek for a settle- 
ment, which, setting aside interminable discussions, would en- 
able its Government to carry into effect the purpose above 
referred to. To this end it sent to Nicaragua Senores Madriz 
and Escalante, with such instructions as proper, to treat with 
her Government. 

The pretensions of Nicaragua were so exorbitant that neither 
the Government nor the Congress of Costa Rica, in spite of 
their determination to yield all that was practicable for the 
sake of obtaining an immediate adjustment, could approve 
of the arrangements made. Then it was when Nicaragua, for 
the first time, carried her territorial pretensions on the side 
of the San Juan river as far as the neighborhood of Matina, 
and when she suggested, as a compromise, that the territory 
between Matina and the San Juan river should be divided 
equally between both countries. She demanded besides a 
tribute to be paid to her for the transit of Costa Rican mer- 
chandise through the San Juan river ! 

In 1848, the Government of Costa Rica made another at- 
tempt to obtain from Nicaragua an equitable settlement, and 
accredits to her a Legation which it entrusted to Licenciate 



#8 

Don Felipe Molina. Nicaragua appointed on her side, to 
represent her in the negotiations, Sen or Don Gregorio Juarez. 
Sen or Molina submitted several projects which he himself 
considered afterwards to have been of unreasonable conde- 
scension ; but nothing was obtained. " Senor Juarez says 
Molina (Memoria, page 37) agreed to, and signed, one day, a 
convention, and on the following day he came and withdrew 
his signature, and explained that his Government had disap- 
proved of his action." 

Subsequently, while in London, Senor Molina received in- 
structions of his Government to enter into negotiations with 
Senor Castellon, the Minister of Nicaragua, and the latter 
Government was urged to instruct him accordingly. But no 
instructions were received by Senor Castellon. 

In 1852 the Washington Cabinet, through its Ministers, 
Mr. Bancroft and Mr. Lawrence, kindly offered its mediation, 
but its good offices did not prove to be more successful than 
all the former efforts. The negotiations initiated in this re- 
spect were afterwards continued with Senor Marcoleta, the 
Nicaraguan Charge d' Affaires at Washington ; but this officer 
demanded that Costa Rica should sacrifice either the district 
of Nicoya, which by no means could be given up, or the right 
bank of the San Juan river, and the river itself, which since 
the foundation of the colony had been, and is, one of its 
principal exits to the Atlantic, and which will afford to it a 
proper communication with both seas when the work of the 
Interoceanic Canal shall be accomplished. 

Under this condition of affairs, and owing to a great ex- 
tent to the stubbornness of Nicaragua in attempting to exclude 
Costa Eica from the San Juan river, Nicaragua fell into the 
hands of the adventurers who had gone there under the 
leadership of William Walker, whom the people of Leon had 
received, strewing flowers before him in his passage. 

The dignity and sovereignty of Central America having 
been trampled down in this way, Costa Kica was first in get- 
ting ready to defend the soil of the common countr;f . What 



49 

Costa Kica did, and what enormous sacrifices it had to suffer 
for the expulsion of Walker, history has recorded. The 
single fact that the struggle, together with the cholera which 
it brought to the country, carried away from Costa Kica, ac- 
cording to the best calculations, fifteen thousand precious 
lives, will be sufficient to give an idea of the magnitude of 
those sacrifices.^ 

If Nicaragua suffered in like proportion, or more, perhaps, 
than Costa Rica, the undeniable fact remains, however, that 
Costa Rica had taken no part in calling the foreigners. 

The Walker war had not yet terminated when the Nicara- 
guau people began to show their distrust of Costa Rica, and 
demanded her to abandon the positions which she, with the 
blood of her children, had conquered on both banks of the 
San Juan river, up to that time an open road for the in- 
vaders. It was not easy for Costa Rica to carry her sacrifices 
to such an extreme, much less when each mail brought news 
of a fresh invasion, and when the efforts of Costa Rica in 
opposing Walker and his followers had naturally caused her 
to incur their profound hatred and exposed her to their ven- 
geance. 

Things having come in this way to such a condition as to 
render a rupture between the two countries almost inevitable, 
Costa Rica, although at that time stronger than Nicaragua, de- 
cided to resort to conciliatory measures, and by decree of No- 
vember 9, 1857, invited all the governments of Central America 
to put an end to the dispute, by the decision of a body of rep- 
resentatives appointed by them to that effect, who should 
agree by unanimous vote to all matters of common interest. 
Costa Rica could, but did not want to, dictate to Nicaragua. 
And as it was impossible for her to sacrifice her own cause, 
and for the common safety of Central America it was neces- 
sary that peace, union, and harmony should be preserved, 



' Streber. Census of Costa Rica, year 1864. 
Walker. War of Nicaragua, &c. 
4 



50 

she preferred that all pending questions should be treated 
before a Central American Diet. 

Subsequently to this step, which was fruitless, and when 
no possibility appeared to exist of preventing the question 
from being settled by force of arms, when further negotiations 
entrusted to Don Emiliano Quadra and General Don Jose 
Maria Caiias had also failed, the Government of the Republic 
of Salvador had the generosity to oJffer its mediation, and this 
was gladly and gratefully accepted by both parties. The 
interposition of Salvador brought things once more upon 
the ground of conciliation. 



CHArTER V. 

CONTINUATION OF THE SUBJECT OF THE FOREGOING CHAPTER. 

The Minister appointed by Salvador, who was Colonel 
Don Pedro Eiomulo Negrete, made first liis appearance be- 
fore tlie Cabinet of Managua, then he came to Costa Rica, 
then he returned to Nicaragua, and always and in every re- 
spect he did all that could be desired to make his mission a 
success. 

On the part of Costa Rica, General Don Jos^ Maria Canas 
was appointed to treat the question. A similar appointment 
was made by Nicaragua in the person of Doctor Don Maximo 
Jerez. And both Ministers, in union with Colonel Don 
Pedro R. Negrete, met at San Jos^ of Costa Rica. That 
was, no doubt, the last and supreme effort of both countries, 
with the efficient assistance of a friendly government, to put 
an end to a question which was both ancient and apt to give 
occasion to a fratricidal war. 

Then a settlement was reached. True it is that it abridged 
the rights of Costa Rica by throwing its limits back far away 
from the Great Lake, the La Flor river, and in part from 
the banks of the San Juan river itself — limits all of them 
which, as shown in the preceding chapters, indubitably be- 
longed to it ; but it is true also that the rights of Costa Rica 
as to the rest were recognized, and that by the settlement, 
peace, harmony, and good order between Costa Rica, Nicar- 
agua, and the whole of Central America, were to be secured. 

The line drawn by the Canas-Jerez treaty was marked as 
follows : 

" The dividing line between the two Republics, starting 
from the Northern Sea, shall begin at the extreme end of 
Point Castilla, at the mouth of the San Juan de Nicaragua 



52 

river, and it shall run along the right bank thereof up to a 
certain point, three English miles distant from Castillo Yiejo 
(the old castle), said distance to be measured from the exterior 
works of that fortress to the point above named. From here, 
and taking the said exterior works as centre, a curve shall be 
drawn which shall run all along the said works parallel to 
them, always at a distance of three English miles, until reach- 
ing another point beyond the castle and two miles distant 
from the right bank of the river. Hence, and always keeping 
at the distance of two miles from the right bank of the river, 
and following all its windings, it shall continue westwards as 
if to meet the Sapoa river until reaching the source or origin 
of the said San Juan river at the lake. From here it shall 
continue parallel to the right shore of the lake, always at 
the distance aforesaid, until reaching the Sapoa river, where 
the parallelism shall cease and the line shall coincide with 
the stream. From the point of contact, which shall be as 
aforesaid, two miles distant from the lake, an astronomical 
straight line shall be drawn up to the centric point of the 
Salinas Bay, on the Southern Sea, where the frontier between 
the two contracting Republics shall terminate." 

As it is seen, the above line caused Costa Rica to recede 
from her natural and legitimate frontiers. 

The extent of territory which Costa Rica gave up in this 
way is shown, therefore, to be considerable ; but its impor- 
tance certainly would be undervalued if it were to be appre- 
ciated solely by its superficial measurement. The sacrifice 
will not be estimated rightly except by taking into account 
the topographical situation of these tracts of lands and the 
fact that they lay on the banks of a river which is destined 
to be the principal interoceanic canal in the world, and on 
the shores of a first-class mediterranean sea, as the Lake of 
Nicaragua is, and on the isthmus between that lake and the 
Pacific Ocean, through which the above said canal will run. 

It was provided in the treaty that Costa Rica should have 
the right to navigate the San Juan river from its mouth on 



58 

the ocean up to three miles this si(h^ of Oastilh) Viojo and 
the community of sovereignty on the bays of San Juan and 
of Sahnas. 

General Don Tomas Martinez, Provisory President of Nic- 
aragua, had been invested by the Constituent Assembly of that 
Republic, at that time in session, to which he had reported in 
full the situation, ample and unlimited faculties to get over its 
diflficulties as he might deem best, by means of treaties, which 
would not need ratification by the same Assembly, except only 
in case that the agreements made and entered into by him 
should prove to be at variance with the secret instructions 
simultaneously communicated to him. Then, and only then, 
the ratification by the Assembly was necessary. 

In compliance with this decree, President Martinez ap- 
proved of and ratified the treaty of April 15, 1858.^ 

No one has ever said that he exceeded his instructions. 

The decree by which he approved of and ratified the treaty 
reads as follows : 

" Tomas Martinez, the President of the Republic of Nic- 
aragua : 

" Whereas, General Maximo Jerez, Envoy Extraordinary 
and Minister Plenipotentiary of Nicaragua to the Republic 
of Costa Rica, has adjusted, agreed upon, and signed, on the 
fifteenth instant, a treaty of limits, fully in accordance with 
the hases ivhich,for that purpose, were transmitted to him, hy 
way of instructio7is ; finding that said treaty is conducive to 
the peace and prosperity of the two countries, and recipro- 
cally useful to both of them, and that it facilitates, by remov- 
ing all obstacles that might prevent it, the mutual alliance of 
both countries, and their unity of action against all attempts 
of foreign conquest ; considering that the Executive has been 
duly and competently authorized, by legislative decree of Feb- 
ruary 26th ultimo, to do everything conducive to secure the 



'See Doc. No. 16. 



\\ 



54 

safety and independence of the Republic ; and by virtue, fur- 
thermore, of the reservation of faculties spoken of in the 
executive decree of the 17th instant : 

" Does hereby ratify each and all of the articles of the 
treaty of limits made and concluded by Don Jose Maria 
Canas, Minister Plenipotentiary of the Government of Costa 
Rica, and Don Maximo Jerez, Minister Plenipotentiary of 
the Supreme Government of Nicaragua, signed by them on 
the 15th instant, and ratified by the Costa Rican Govern- 
ment on the 16th. And the additional act of the same date 
is likewise ratified. 

" Given at Rivas on the 26th day of April, 1858. 

" TOMAS MARTINEZ. 
"GREGORIO JUAREZ, 

'■^ Secretary y 

On the side of Costa Rica the treaty was ratified without 
difficulty ; and as its conclusion was deemed to be a happy 
event for Central America, and more especially for the Re- 
publics immediately concerned in it, the exchange of the 
ratifications was made with unusual solemnity by the Presi- 
dents of the two Republics personally, attended by their re- 
spective Secretaries of State, and with the intervention of 
the Mediator Miiiister, Colonel Negrete. 

With the act of exchange of these ratifications, the old 
question, whiph so often had caused both countries to come 
to the very verge of unpleasant situations, was settled and 
set at rest. 

The Nicaraguan Executive took, however, a step further, 
and submitted the treaty to the Assembly. This was done, 
not because necessary, for the treaty, according to the terms 
of the decree of the Assembly, was valid without such a 
requisite ; nor because such a submission was required as a 
matter of form, since the ratifications had been exchanged, 
and this exchange is a formality which never follows, but 
precedes legislative sanction ; but because of the importance 



55 

of the matters involved in it. And the Assembly came then 
and added its supreme sanction to the treaty by decree, which 
reads as follows : 

"Number 62. 

"The Constituent Assembly of the Republic of Nicaragua, 
in use of the legislative powers vested in it, decrees : 

"Article only. The treaty of limits concluded at San Jose 
on the 15th of April, instant, hetween General Don Maximo 
Jerez, Minister Plenipotentiary from this JRepvhlic, and General 
Don Jose Maria Canas, Minister Plenipotentiary from the 
Republic of Costa Rica, with the intervention of Colonel Don 
Pedro Eomulo Negrete, Minister Plenipotentiary from Sal- 
vador, IS HEREBY APPEOYED. 

" To THE Executive Power. 

" Given at the Hall of Sessions of the Constituent Assem- 
bly in Managua, on the 28th of May, 1858 — Hermenegildo 
Zepeda, Vice-President ; Jose A, Mejia, Secretary; J.Miguel 
Cardenas, Secretary. 

" Thereupon : Let it be executed. National Palace, Man- 
agua, June 4th, 1858 — Tomas Martinez." 

In consequence thereof the treaty was published in the 
Official Journal,! ^nd the text thereof was communicated as 
a law of the Republic to the diplomatic body, both foreign 
and national. 

The same thing was done at Costa Rica, 

The Constituent Assembly framed and enacted subsequently 
the Constitution of the Republic, and, by its Article I, de- 
clared that all special laws on limits formed part of the Con- 
stitution. By virtue of this provision the treaty of April 15, 
1858, was clearly and indisputably embodied in the funda- 
mental charter of that country. 

The Costa Rican Constitution, which, in the following 



' Gaceta de Nicaragua, No. 15, May 28, 1851. 



56 

year, December 26, 1859, was promulgated, in describing the 
limits of the Republic on the side of Nicaragua, set forth 
the same line as established by the treaty of April 18, 1858 ;^ 
and this solemn enactment did not give rise to any protest 
on the part of Nicaragua. 

The treaty continued to be in force and observed by both par- 
ties for fourteen years, during which it served as a basis for the 
Constitutions, laws, and mutual relations of the two countries. 

In 1869, when the men and the circumstances of 1858 had 
long passed aAvay, Costa Eica enacted a new Constitution, ^ 
and defined by it its frontier on the side of Nicaragua, as had 
been done before, in accordance with the treaty of 1858 ; and 
no protest was heard, either from the political powers of 
Nicaragua, nor even from the private press of that country. 
On the contrary, some documents of utmost importance, 
corroborative of the strength and vigor of the treaty of limits, 
emanating from the Nicaraguan Congress and Executive, were 
published in that year. 

The germ of the dispute sprung up out of the displeasure 
which Nicaragua experienced with the measures taken by the 
administration of Don Jesus Jimenez, some time afterwards, 
to stop the destruction, by inhabitants of Nicaragua, of cer- 
tain forests in the Costa Kican territory, between the regions 
of the Rio Frio river and the plains of Tortuguero, which the 
former used to invade in search of rubber. That circum- 
stance prepared or opened the way to the ignoring of the 
treaty ; but the withdrawal by Costa Rica, in 1870, of her 
adherence to the agreement Ayon-Chevalier, decided it. 

Don Tomas Ayon, as Minister of Nicaragua in Paris, had 
entered into an agreement with Mr. Michel Chevalier for the 
building of a canal in the valley of the San Juan river, until 
reaching the Pacific Ocean. Chevalier and Ayon, well know- 
ing the rights of Costa Rica, and the terms of the treaty of 
1858, had set forth by one of the clauses of their agreement 



' See Document No. 63. * See Document No. 63. 



, d 



57 

tliat the consent of Costa Rica was essential for its validity. 
Costa Rica consented to it, but Nicaragua delayed for a 
while, and soon it was discovered, also, that Mr. Chevalier 
had no means to comply with the obligations he had con- 
tracted. Thereupon Costa Rica withdrew its consent. 

This step irritated Nicaragua, or rather Senor Ayon, who 
was then the Nicaraguan Secretary for Foreign Relations, and 
had been the author of the agreement ; and considering that 
it would be better for Nicaragua to act by herself, independ- 
ently of Costa Rica, in all matters concerning interoceanic 
canals, the Nicaraguan Executive reported to Congress and 
set forth that it entertained some doubts about the validity 
of the treaty of limits, which, in its opinion, ought to have 
been ratified by two subsequent legislatures, and had been 
only by one. 

The Nicaraguan Congress heard, not without profound sur- 
prise, these new and strange views about the treaty, but de- 
cided nothing whatever in the sense of its validity, or nullity. 
It followed that course which seemed to it to be most pru- 
dent and uncommital, which was to keep silent. Sixteen years 
have passed since, and the Nicaraguan Congress has never 
dared to pronounce itself in favor of the alleged nullity, al- 
though the relations between the two countries have been 
sometimes strained to the extreme that in 1876 a rupture 
seemed to be imminent, and that for a long time all official and 
commercial intercourse between them remained suspended. 

Congress by this action, besides postponing a disagreeable 
solution of the problem, indirectly, but plainly, acknowledged 
that such alleged doubts were groundless. 

Subsequent to the denunciation of the treaty there were 
still two attempts of arrangement. One took place in 1872, 
when the Presidents of Costa Rica and Nicaragua, General 
Don Tomas Guardia and Don Vicente Quadra, held, at the 
request of the former, an interview at the City of Rivas. 
And the second was the treaty Castro-Navas of January 19, 
1884. Both projects failed. 



58 

Different questions, arising out of tlie anomalous condition 
in wliicli the riglits of both parties found themselves under 
these circumstances, such as trespasses on the frontiers on 
one and the other side, questions on navigation of the Colo- 
rado river, and also of the San Juan, &c., &c., have been dis- 
cussed during these sixteen years. They all depended upon 
the principal question, which is the treaty ; but they all have 
been decided by common agreement, and given origin to the 
status quo of 1858. So it is that, even under these circum- 
stances, if it is true that there has been a protracted discus- 
sion between both countries on the theoretical validity of the 
treaty of limits, it is also true that, practically, the treaty of 
limits has never ceased to regulate, or govern, the relations 
between Costa Eica and Nicaragua. 



PART SECOND. 



PART SECOND. 
ELUCIDATION OF THE PRINCIPAL POINT. 



Chaptek I. 

EXPOSITION or THE ARGUMENTS MADE BY NICARAGUA IN SUPPORT OF THE 
IDEA THAT THE TREATY OF 1858 IS NOT VALID. 

What reasons has the Government of Nicaragua alleged, 
in support of its pretension, that the stipulations of the treaty 
of 1858 are not binding upon it ? 

That the said treaty, although ratified by the Assembly of 
1858, was not ratified as it ought to have been, to be valid, 
by the subsequent Legislature ; 

That the Government of Salvador, an essential party to the 
treaty because of having interposed its guarantee, did not 
ratify it ; 

And that the said treaty deeply wounds the sovereignty of 
Nicaragua, and is, to a great degree, injurious to her inter- 
ests, and depressive of her dignity and autonomy. 

No systematic and complete exposition of the reasonings 
of Nicaragua against the treaty can be found anywhere in 
the diplomatic correspondence of the Nicaragua foreign of- 
fice ; and for this reason I have been myself compelled, in 
order to speak intelligently, to peruse all that has been writ- 
ten on the subject, whether officially or unofficially, in the 
Republic of Nicaragua. 

I shall try to set forth, as faithfully as possible, all the ar- 
guments that have been made. 

It is said that the treaty of 1858 was signed under the 
sway of the Constitution of 1838 ; and that, therefore, in 
order to make the treaty binding upon Nicaragua, each and 



62 

all of the formalities and requisites provided for by the Con- 
stitution ought to have been complied with. Every irregu- 
lar proceeding not established and sanctioned by that Con- 
stitution was illegal, unauthorized, and productive of no effect. 

By the treaty, Nicaragua ceded to Costa Rica a great por- 
tion of the national territory, as defined by her Constitution, 
namely, the whole district of Mcoya, and a portion of the 
right bank of the San Juan river. And that cession involved 
an amendment to the Constitution, for which, according to 
the express provisions of the same, the national consent was 
required to be given not only by one Assembly but by two 
subsequent Legislatures. The Assembly of 1858 which ap- 
proved the treaty did not act as a constituent assembly, but 
"as a legislative power ; and so it itself declared in the pre- 
amble of its decree of ratification, therefore establishing in 
an implicit way the necessity of a second approval. In com- 
pliance with Article 149 of the Constitution, the treaty ought 
to have been ratified by two Legislatures ; but it was ratified 
only by one. It was not sufficient that some of the formalities 
required should have been complied with ; but it was neces- 
sary that all of them, without any exception, should have 
been fulfilled. The treaty of limits never reached perfection ; 
it never had any effect between the contracting parties ; it al- 
ways remained in the condition of a project or a proposition ; 
it has never been taken as a basis for legislation, or for regu- 
lating the relations between Nicaragua and Costa Rica ; and if 
Nicaragua has given notice to Costa Rica of certain conven- 
tions, entered into by her, in regard to interoceanic canals, 
she has done so, not by virtue of the treaty, but because of 
the desire that the enterprise of the canal would not find any 
obstacle in a dispute about limits which ought to be smothered 
beneath the great interests to be created by that colossal 
work. And the proof that the treaty never reached perfec- 
tion is that Costa Rica in 1869 asked Nicaragua to ratify it. 

This is the argument of the Government of Nicaragua, set 
forth in all its force, in regard to the first point. As to the 



63 

second, which is the alleged nullity of the treaty of limits 
for want of ratification by the Government of Salvador ; and 
as to the third, which is the alleged injury to the interest, au- 
tonomy, and dignity of the Republic, the Nicaraguan Foreign 
Office has limited itself to make only assertions, without 
stating a fact, or giving a single proof, or showing any reason 
upon which they may be founded. 

But as the Nicaraguan ex-Secretary of State, Don Tomas 
Ayon, the father and creator of the present controversy, 
published a pamphlet entitled, " Considerations on the ques- 
tion of territorial limits between the Republics of Nicaragua 
and Costa Rica," in which he extensively occupied himself in 
the discussion of this point, I have thought it pertinent to 
refer to it in this place, and show" the manner of his reasoning. 

" Nicaragua found herself," he says, " absolutely prostra- 
ted by both the severe civil war of 1854 and the national w^ar 
against the filibusters ; the treasury was empty ; there was 
no armament ; discouragement had taken possession of all 
minds ; the heart of the Nicaraguans palpitated still with 
gratitude for the co-operation of Costa Rica in the national 
war ; and under these circumstances the President of Costa 
Rica, Don Juan Rafael Mora, made his appearance, and with 
arms in his hands demanded a treaty of limits, in which 
Nicaragua should cede to Costa Rica as much as he was willing 
to ask. So it was done, and the treaty of April 15, 1858, was 
the painful miscarriage brought about by that act of violence." 

But Nicaragua wanted to be protected against new sur- 
prises on the unpopulated parts of the banks of the river and 
on the lake, and required that the two nations should bind 
themselves not to wage at any time, under any circumstances, 
even in a state of w'ar, hostilities of any kind against each 
other, either on the port of San Juan del Norte, nor on the 
San Juan river, or the lake of Nicaragua ; and the Govern- 
ment of Salvador, through Minister Senor Negrete, guaran- 
teed the faithful and exact compliance with that provision. 

That special guarantee caused the Government of Salva- 



64 

dor to become one of tlie contracting parties ; but the treaty 
was not ratified either bj the Executive nor by the Congress 
of Salvador. 

It is known that all the clauses of a treaty are considered 
as conditions of each other, and that if one of them fails the 
whole treaty fails. The guarantee was a condition upon which 
Nicaragua contracted an obligation, and as it failed Nicaragua 
cannot T3e considered as bound to respect the treaty. 

Every clause in a treaty has the same force as a condition, 
the failure in the performance of which invalidates the whole. 

It is a truth beyond discussion that a treaty has no effect 
until the suspensive condition therein contained is complied 
with. Therefore, as long as the ratification of the treaty of 
limits by the Government of Salvador is not proved, no one 
of the contracting States must consider itself bound by it. 

It is indubitable that, even if the treaty of limits had been 
ratified by Nicaragua, such ratification would not have been 
sufiicient to carry it into execution, since it was, besides, nec- 
essary that the Government of Salvador, which intervened as 
guarantor or surety for the fulfilment of Article IX, should 
ratify the treaty. Therefore the treaty of limits has no eftect. 

Such is the conclusion reached in the statement made by 
the Nicaraguan ex-Secretary of State, Don Tomas Ayon. 

As to the last point, neither the Government nor anything 
printed have gone beyond the mere assertion of the facts 
without proof or explanations, as above stated. 

The arguments of the Government of Nicaragua to con- 
sider itself released from the obligations of the treaty of 
1858 being, therefore, known in a general way, it is time to 
enter into its analysis and refutation ; and this I shall do, 
dividing the matter in as many chapters as are required to 
convey a clear idea of the subject. 



Chapter II. 

THE TREATY OF LIMITS WAS NOT MADE UNDEK THE SWAY OF ANY CONSTI- 
TUTION, BUT UNDER A GOVERNMENT TEMPORARILY ENDOWED WITH UN- 
LIMITED POWERS. 

The treaty of April 15, 1858, was not concluded, approved, 
ratified, promulgated and carried into execution under tlie sway 
of the Constitution of 1838, but under tlie extraordinary and 
transitory circumstances of a regime in which the Constituent 
Assembly of that year exercised, in an unlimited manner, the 
whole power of the National Government^ — a regime which 
was created, subsequent to the civil struggles of 1854 to 
1857, by the fusion and harmonization of the two parties, 
which under the names of Conservatives and Democrats, or 
Granadine and Leonese, had made on each other until then 
uncompromising war. 

The Nicaraguan Government of 1858 was not born out of 
the Constitution of 1838, nor out of that of 1853, but out of 
a revolution ; and it was simply what in the public law is called 
a de facto government. So it is easy to prove, by simply re- 
membering the political vicissitudes of Nicaragua during the 
three years of her noisy civil war.^ 

On the 5th of May, 1854, the legitimate government of . 
Nicaragua had been intrusted to General Don Fruto Cha- 
morro, who had been elected in full accordance with the pro- 
visions of the organic law of 1853, and who had been recog- 
nized, inside and outside the country, as a constitutional 
Governor. 

But Senor Chamorro belonged to the Conservative party, 



' This statement is based upon the facts reported by the official press of 
Nicaragua, the " Anuario de Ambos Mundos," and the History of the Nic- 
araguan war by Walker. 
5 



66 

and the hatred between this party and the one called Demo- 
cratic had to lead the country into grave disasters. 

It was on that memorable date that Gen. Don Maximo 
Jerez, and many others among his followers exiled from 
Nicaragua by Chamorro, succeeded in surprising the garrison 
of the port of Kealejo, and in carrying their victorious arms 
as far as Leon. 

There they organized a provisional government, at the head 
of which they placed Don Francisco Castellon, formerly a 
minister of Chamorro and his rival in the last election ; and 
this Government was accepted and recognized by a considera- 
ble part of the country. 

In the meantime Chamorro concentrated his forces in 
Granada, the stronghold of his principal followers, and pre- 
pared himself for the struggle. 

The State saw itself divided, therefore, into two great hos- 
tile bands, one presided over by the legitimate Government, 
Conservative or Granadine, which supported the Constitution 
of 1853, then in force, and the other by the Eevolutionary 
Government, Democratic or Leonese, which supported, as it 
alleged, the principles of the former Constitution of 1838, 
then abolished. 

The struggle was stubborn and cruel ; and, when the Leonese 
party saw itself doomed to perish, called to its assistance the 
adventurer, William Walker, who arrived in Nicaragua in 
June, 1855. 

The cholera, which, at that time, ravaged the country, 
caused both belligerents to pay it their tribute by carrying 
off their leaders ; but the place of Chamorro was filled by 
Dr. Jos^ Maria Estrada, and that of Castellon by Don 
Nazario Escoto, and the struggle continued with still more 
fury. 

Foreign assistance inclined things in favor of the Leonese 
party, and on the 23d of October, 1855, General Corral, in 
the service of the Conservative Army, and with powers which 
he said he had received from Estrada, on the one side, and 



67 

Walker, in tlie name of tlie Democratic Government, on the 
other, signed a treaty by which a new Government was or- 
ganized, and the civil war was terminated. 

This treaty was afterwards ratified by the Democratic Gov- 
ernment. 

The new mixed Government was constituted as follows : 

President, Don Patricio Eivas, of moderate opinions. 

Secretary' of War, General Corral, Conservative. 

Secretary of Foreign Relations, General Jerez, Democrat. 

The rival Governments of Estrada and Escoto disappeared 
from the political arena. 

The new Government was recognized at home and abroad ; 
but behind it the sinister figure of Gen. Walker, Chief Com- 
mander of the Army, carefully watching for the moment of 
taking possession of the power, prominently showed itself. 

The outrageous assassination of the Secretary of War, exe- 
cuted by Walker under color of military justice, with the 
knowledge of and without opposition from the Rivas Cabinet, 
which was powerless to prevent it, afforded that occasion. 

Eivas and Jerez, tired of being mere instruments in the 
hands of the ambitious foreigner, pronounced themselves 
against him. 

Then Walker proclaimed Don Eermin Ferrer Provisional 
President of Nicaragua ; and subsequently, under a sham 
election said to have been made under the constitution of 1838, 
proclaimed himself President; and there were distinguished 
Nicaraguans, such as Vigil, Pineda, Valle, and hundreds of 
others, who accepted, recognized, and supported those admin- 
istrations. Such was the blindness of the political passions 
and the confusion of things in Nicaragua. 

In view of the new turn which the events had taken, Es- 
trada, then in Honduras, repealed and repudiated the treaty 
of the 23d of October, which had transferred the power to 
Don Patricio Rivas ; but Don Patricio Rivas himself con- 
tinued to maintain, on his part, that the only legitimate power 
of Nicaragua was represented by him. 



^ 68 ' 

Walker counted, however, with great elements for resist- 
ance, both inside and outside the country ; and it was neces- 
sary for Nicaragua that the forces of Costa Rica, Salvador, 
Honduras, and Guatemala should come to her assistance to 
expel Walker, as they did on the 1st of May, 1857, from the 
Central American soil. 

The Government which then remained standing was the 
government of Don Patricio Rivas, born out of the treaty of 
the 23d of October ; but it did not satisfy the aspirations of 
either the Leonese or the Granadine party, which prepared 
themselves to enter again into a new struggle, until securing 
absolute control for the conqueror. 

The two commanders of the rival forces. Generals Don 
Maximo Jerez and Don Temas Martinez, succeeded in reach- 
ing an agreement by which they divided the power among 
themselves, and formed a duumvirate, which put an end to the 
administration of Rivas, and initiated the reorganization of 
the country. 

Blood had been shed in torrents for the Constitutions of 
1838 and 1853 ; and Jerez and Martinez thought that it was 
advisable to promulgate a new organic law, and convoke for 
that purpose a Constituent Assembly. At the same time they 
ordered also a general election for the ojfice of President of 
the Republic. 

Popular vote decided in favor of Martinez ; and the Assem- 
bly which met in November declared all that had been done 
in Nicaragua during the revolutionary period to be null and 
void, and ratified the Presidential election. 

It was in this way that the Government of Castellon and his 
rival Estrada, the Government of Don Patricio Rivas, both 
before and after the expulsion of Walker, the administrations 
of Ferrer and Walker, and even the -duumvirate of Martinez 
and Jerez, were ignored and repudiated as if they had never 
existed ; and all their acts, laws, decrees, decisions, orders, 
grants of land, letters of citizenship, treaties, promissory 
notes, contracts, and obligations of all kinds, became null 



69 

and void, and adjudged to be without value or effect of any 
kind. Everything was embraced in the repudiation decreed 
by the Assembly. 

The constituent body ratified, nevertheless, such decrees 
of the duumvirate as had been issued for the reorganization of 
the country. 

This Assembly, where all the parties were represented, con- 
stituted itself, with the general consent of the country, as the 
supreme ruler of the destinies of Nicaragua. The Martinez 
Government lent to it unconditional support, and everything 
pointed to one object, which was the consolidation of peace 
and the re-establishment of order. 

The principle of legality represented by Estrada and by 
the Constitution of 1853 was left buried under the rubbish 
heaped up by anarchy ; and the triumphant legality was the 
one represented by the Constituent Assembly, which was the 
last and crowning step of the revolution. 



Chaptee III. 

THE CONSIDERATION OF THE EXCEPTIONAL REGIME EXISTING IN NICARAGUA 
IN 1858 CONTINUED. 

The Assembly undertook ttie great work of the political 
organization of Nicaragua in November, 1857, and the new 
Constitution did not appear until the 19th of August, 1858. 

During the time which intervened between the former and 
the latter date the Assembly exercised unlimited powers, 
both constituent and legislative, without restriction of any 
kind. 

That body was not a mere constituent congress in the ordi- 
nary sense of the word. It was much more than that ; it was 
a great national convention. Now it acted as a Legislature, 
then as a Constituent Congress ; now as forming but one 
chamber, then as a Congress consisting of two co-ordinate 
Houses ; now enacting organic laws, and then promulgating 
municipal statutes ; creating tribunals, amending codes, ap- 
proving treaties, and promulgating the Constitution. Its om- 
nipotence was superior even to the principle that the laws 
have no retroactive effect, which is found at the very root of 
the legislation of all countries. 

The Assembly which acted in that way certainly exercised 
an unlimited power, the greatest which can ever be exercised 
among men constituted in society, and did not find itself 
under the sway of any written law regulating its action or 
embarrassing its movements. 

Instances of such assemblies are not frequent in the lives of 
the nations, but they always occur after great social revolu- 
tions. I need not cite examples which are perfectly well 
known. 

These extraordinary constituent bodies are vested, owing 
to their own nature, with the plenitude of power which con- 



71 

stitutes sovereignty. All that the Sovereign can do they also 
can accomplish. 

The abolished Constitution of 1838, which was the flag 
harbored by the revolution of May, 1854, was the starting- 
point of the labors of the Constituent Assembly, as provided 
by the decree of Convocation ; but the provisions of that 
organic law, thousands of times trampled upon b}^ the bellig- 
erent parties, affected nothing, nor could they affect the ac- 
tion of the Assembly. 

That Constitution forbade the Chief Executive Magistrate 
to command the army ; but the Assembly decreed the con- 
trary. 

That Constitution forbade the members of the Legislative 
body to be, simultaneously, members of the Supreme Court 
of Justice, or ofl&cers and clerks in the Executive Depart- 
ment ; but the Assembly enacted otherwise. 

That Constitution provided that the Presidential term of 
office should be two years ; but the Assembly decided that 
it should be four. 

That Constitution established the principle that no retro- 
active effect should be given to laws ; but the Assembly en- 
acted laws to which it gave retroactive effect ; something 
monstrous in theory, but claimed to be necessary, absolutely 
indispensable in practice, under those circumstances, as 
ground and foundation for a new legal order subsequent to 
revolution and anarchy. 

Shortly after the meeting of the Constituent Assembly 
difficulties arose between Costa Rica and Nicaragua, as al- 
ways happened, on account of the unfortunate question of 
limits. Nicaragua thought that Costa Rica had invaded her 
territory, and prepared herself for defence, and issued a de- 
cree, under date of the 25th of November, 1857, declaring 
war against Costa Rica. 

In addition to that decree, and foreseeing that some ar- 
rangement could be made with Costa Rica, the Assembly 
enacted another decree, dated on the 10th of December fol- 



72 

lowing, by which it vested in the Executive, in full, all the 
powers which, in regard to foreign relations, had already 
been agreed to be given it by the Constitution which was 
then under discussion, and which some months afterwards, 
in August, was in fact promulgated. 

Let us see now which were those faculties. I shall copy 
from the Journal itself of the Assembly of the 25th of No- 
vember, 1857. I find there the following passage : 

" It was resolved that Section 8, relative to foreign rela- 
tions and negotiations of treaties, should be divided into two 
parts, and, upon consideration of each one, they were finalfy 
approved, as follows : 

" 1st. To conduct the Foreign Eelations ; to appoint and 
accredit diplomatic ministers of all grades, agents and consuls 
of the Kepublic, near the Foreign Governments and courtsj; 
to receive or admit those sent here, when legally authorized 

" 2d. To negotiate treaties and all other contracts whatso- 
ever interesting the Republic, whether with companies or 
private persons, both native or foreign ; to adjust treaties of 
peace; to celebrate concordats with the Apostolic See — all 
these acts being subject to ratification by the Legislative 
Power, and to exercise the patronage according to law." 

And as in this section, section 17th of the project has been 
embodied, the Assembly went on to discuss the other two.^ 

In use of these faculties, agreed upon by the Assembly 
since the 26th of November, and sanctioned and put into 
operation on the 1st of December, owing to the urgency of 
the occasion, the Government of Gen. Martinez entered into 
negotiations with Costa Eica to rid the country of a war 
which was believed to be imminent. 

Supposing that the Constitution of 1838 would have had 
any value at all up to that time, as rule of action for the 
supreme powers, the decree of December 1st, as far as for- 



^ These faculties are the same described in Sees. 14, 15, and 16 of the 
Nicaraguan Constitution of Aug. 19, 1858. 



73 

eigu relations and international treaties were concerned, 
buried it tinally in the grave of history. 

But circunistaiices were most grave, and the Constituent 
Assembly did not content itself with the facilities it had given 
the Executive for the termination of the difterences between 
Costa Rica and Nicaragua. And, for the sake of obtaining 
an immediate arrangement, it issued on the 5th of February, 
1858, the decree which reads as follows : 

"The Constituent Assembly of the Republic of Nicaragua, 
in use of the legislative faculties with which it is invested, 
decrees : 

" Article 1. For the purpose that the Executive may com- 
ply with the Decree of January 18th instant, ^ the said Ex- 
ecutive is hereby amply authorized to act in the settlement of 
the difficulties with the RepidjUc of Costa Rica in such 7nan- 
ner as it may deem best for the interests of both countries^ and 
for the independence of Central America, without the neces- 
sity OF eatification by the legislative power. 

" Article 2. Such treaties of limits as it may adjust shall 
be final, if adjusted in accordance with the bases which sepa- 
rately will be given to it ; but, if not, they shall be suhject to 
the ratification of the Assembly. 

" To the Executive power. 

" Given at the Hall of Sessions in Managua, on the 5th of 
February, 1858. 

" Timoteg Lacayo, President. 
" IsiDOEO Lopez, Secretary. 
" Pablo Chamoeeo, Secretary." 

This decree was ordered to be executed by the President 



^By this decree the Constituent Assembly had ordered new Commissioners 
to be appointed, who, under new instructions, should enter into the nego- 
tiation of treaties of peace, limits, friendship, and alliance between Nic- 
aragua and Costa Rica, which would harmonize their respective interests, 
and alfirm the independence of the two countries, said treaties being sub- 
ject to the ratification of the Assembly. 



74 

on the same 5th day of February, and was duly published 
and promulgated. 

By virtue of its provisions the Executive power became 
vested with the faculty of making a final treaty with Costa 
Rica, without needing legislative ratification, provided, how- 
ever, that as far as limits were concerned it would con- 
form itself to the bases or instructions separately communi- 
cated to it, the ratification being indispensable only in case 
that the stipulation made in regard to limits should deviate 
from those instructions. 

The treaty of April 15, 1858, was made under the sway of 
this decree, and of the former one of December 1, 1857 ; not 
at all under the sway of the Constitution of 1838. 

The separate instructions or bases framed by the Assem- 
bly were respected and complied with, and no legislative ap- 
proval was, therefore, necessary. In proof thereof the fact 
can be mentioned that the treaty was published as a law of 
Nicaragua, and no objection was raised in the Assembly 
against its language. Had the Executive deviated from the 
instructions or bases given it by the Assembly, such an ac- 
quiescence would never have been witnessed. 

The subsequent administrations of Nicaragua have made 
stupendous efforts of Imagination to find out flaws in the 
treaty of limits ; but it has never occurred to them that 
Gen. Martinez went beyond the instructions given him by 
the Assembly of 1858. This is a good indication that the 
treaty was made in compliance with them. 

The treaty did not require, as I have said, legislative rati- 
fication ; but for the greater approval thereof the said ratifi- 
cation was granted to it by the decree of May 28, 1858.^ 

The treaty of limits became, then, for Costa Rica, for Nic- 
aragua, for the friendly nations, and for the whole world, an 
international compact, inviolable and sacred. 

The Constituent Assembly went on with its work, and in 
the new organic law. Article I, it provided as follows : 



" This decree has been embodied in First Part, Chapter V, p. 55. 



75 

" The laws on special limits foum a tart of the Consti- 
tution." 

The treaty of April 15, 1858, wliicli was, as it is noAv, a 
law of Nicaragua, and was, as it is now, a law on special 
limits, became, therefore, a part of the Constitution, and 
acquired, in a still more firm and solemn manner, the char- 
acter of Nicaraguan organic law. 

It is therefore shown by proof of irresistible character : 

1st. That the treaty of limits was not adjusted under the 
sway of the Constitution of 1838. 

2d. That it was initiated, concluded, ratified, exchanged, 
promulgated, and carried into execution under a transitory 
regime where the Government was vested with unlimited 
and extraordinary constituent power. 

3d. And that it was made a part of the Nicaraguan Con- 
stitution of 1858. 

What now remains to be known is whether the action of a 
special and extraordinary regime, if a government of political 
reorganization, such as the one existing in Nicaragua in 1858, 
can bind the country. 

The answer is very simple. It is given by the well known 
authority of Don Carlos Calvo. 

" A de facto government, recognized by the other States 
and in intimate communion with the mass of the nation, 
possesses in regard to the national territory the same powers, 
the same faculties, as the legitimate government which it re- 
placed. All that is done by it within the limits foreseen and 
determined by the domestic public law of the State, wdiether 
for acquiring or for alienating territory, is aibsolutely valid 
and irrevocable. This is a principle of high practical im- 
portance from an international point of view."^ 

Of the opinion of Calvo are also Yattel, Phillimore, Heffter, 
Kent, Ortolan, Bello, Riquelme, Pradier Fodere, Halleck, 
Garden, Desjardins, and Kltiber, cited by him. 



^ Droit international theorique et pratique, vol. 1, § 711. 



T6 

Whicli was the domestic public law of Nicaragua at the 
time of the conclusion of the treaty ? Was it, perhaps, the 
Constitution of 1838 ? No ; by no means. We have seen 
already, that, as far as foreign relations in general, and es- 
pecially as far as negotiations with Costa Rica about limits 
were concerned, the said constitution had been abrogated by 
specific decrees enacted, ad hoc, by that Constituent As- 
sembly. 

The domestic public law of Nicaragua, at the time of the 
conclusion of the treaty of limits, consisted in the decrees 
of December 1, 1851, and February 5, 1858. 

The treaty was adjusted in conformity with those decrees. 

It was, besides, ratified by the Constituent Assembly. 

It was subsequently made a part of the Constitution of 
1858. 

Its validity is therefore indisputable, and its firmness un- 
controvertible. 



Chapter IV. 

THE TREATY OF LIMITS DOES NOT IMPLY ANY REFORM OR AMENDMENT OF 
THE NICARAGUAN CONSTITUTION OF 1838. 

Even if taken for granted that, at the time of the approval 
of the treaty of limits, Nicaragua found herself under a reg- 
ular constitutional regime, where the charter of 1838 ruled 
supremely, and not under the extraordinary circumstances 
above explained, still the efficiency and validity of the com- 
pact would not be less. 

The Constitution of 1838 did not define the frontier of the 
Nicaraguan territory on the side of Costa Rica. And the 
reason of this omission was, that Nicaragua had then a 
question pending with her neighbor about limits, and the 
Constituent Legislature did not want to prejudge it in any 
way whatever. Therefore it chose to preserve the status quo, 
and declared, in general terms, that the national territory 
reached on the southeast as far as the frontier of Costa Rica ; 
and it added that the boundaries with the bordering States 
should he marhed hy a law which wovld rnalie a part of the 
Constitution. 

Here is the text of this provision : 

"Article II. The territory of the State is the same as was 
formerly given to the Province of Nicaragua ; its limits be- 
ing, on the east and northeast, the sea of the Antilles ; on 
the north and northwest, the State of Honduras ; on the 
west and south, the Pacific Ocean ; and on the southeast the 
State of Costa Rica. The dividing lines with the boeder- 
iNG States shall be marked by a law which will make a 
part of the Constitution." 

The Constitution, therefore, was left incomplete ; but it 
provided for the means of completing it, which should be by 
a law. 



78 

To say that tlie Charter of 1838 carried the frontiers of 
the State as far as the Jimenez river on the Atlantic an'cl the 
Salto river on the Pacific, as has been held during the last 
years, is to assert what the Charter itself does not say. It 
is to contradict openly the provision which it contains, and 
which postpones, until a law for that special purpose should 
be enacted, the determination of the bordering line. 

It will be remembered that when, in 1838, Nicaragua was 
engaged in the reform of the Constitution of 1826, Don 
Francisco Maria Oreamuno, Envoy of Costa Rica, requested 
Nicaragua, finally, to recognize the annexation of Nicoya to 
Costa Rica, and that, as no treaty upon the subject could 
then be made, and there was gome hope of an amicable set- 
tlement more or less speedy, but sincerely and ardently de- 
sired by both parties, it was decided, in order that the new 
Constitution should not offer any obstacle to the said settle- 
ment, that the language thereof would be that which has al- 
ready been quoted. 

In view of Article 2 of the Constitution of 1838, as framed 
under the circumstances aforesaid, it can be asserted without 
any hesitation that the said Constitution of 1888 did not 
mark out the boundary between Nicaragua and Costa Rica ; 
nor could it do so reasonabl}'^, since there was an interna- 
tional controversy pending upon that very point, loyally con- 
ducted on diplomatic grounds, the solution of which, amica- 
bly and peacefully, was desired by both parties ; and it was 
not proper that, by a declaration ex abrupto, made by one of 
them, by its own authority, the cause would be decided in 
its favor, and the question would be placed on the ground of 
accomplished facts. 

A public treaty, clothed with all the force of a law, was 
destined to supplement and complete the Constitution in 
which it had to be embodied so as to become a part of the 
organic law of Nicaragua, and as long as the treaty was not 
concluded the Constitution ought to remain incomplete. 

Such is the clear right and natural construction, as well as 



79 

the only possible one, to be placed upon the constitutional 
text, and any other which may be attempted to be placed 
upon it will be violent and in open contradiction to its letter 
and spirit. 

So that the treaty by which the unfortunate question of 
limits between Costa Rica and Nicaragua was set at rest, far 
from involving or implying a constitutional reform or amend- 
ment, was, as expressed by the text of the charter itself, 
the natural complement of it. It became a part of it since 
the very moment in which the character of a national statute 
was given to it. 

It was not necessary, under these circumstances, for the 
treaty of limits to be approved either by a Constituent As- 
sembly, convoked ad hoc, or by two subsequent Legislatures. 

There was no amendment to make, and there was only one 
void to fill. This was to be done as the Constitution provided ; 
that is, by means of a secondary law or statute, which was 
the treaty of limits. 

Even supposing that this treaty was concluded under the 
sway of the Constitution of 1838, Article 194 of the same, 
which refers to constitutional amendments or reforms, an 
article on which the Government of Nicaragua grounds its 
argument, has nothing at all to do with the question, be- 
cause Article 2, which created the void, provided at the 
same time for the manner of filling it. Article 2, there- 
fore, and not Article 194, is the one at which it is necessary 
to look for the decision of the point. 

This construction, which, as has been proved, is the only 
admissible one, was also the one which the supreme authori- 
ties of Nicaragua placed upon the domestic pubhc law of that 
country when the treaty was made. Neither the Commission- 
ers of the Nicaraguan Government, nor the Executive power 
of that Republic, nor her Constituent Assembly, nor her pub- 
lic press, nor any person whatever, said then, or even thought, 
that the treaty of limits would not be binding upon Nicaragua 
unless subject to special proceedings never before resorted to 
for the perfection of treaties among nations. 



80 

It cannot be thought, or admitted, that a whole generation 
of pubhc men would be ignorant to such a degree of the con- 
stitutional law of their own country. 

It cannot be thought, either, that the organic laws of Nic- 
aragua were then constructed in bad faith, so as to leave the 
door open to future controversy and afford opportunities to 
violate pledged faith. 

The only thing which can be said and thought is that the 
doubts which occurred to the mind of Secretary Ayon, after 
fourteen years of mutual and faithful execution of the treaty, 
on the part of both countries, has no rational foundation. 

The Assembly which approved the treaty was not an ordi- 
nary Congress, subject to the provisions of a charter, but an 
extraordinary Constituent Assembly, which ruled with sov- 
ereign unlimited power. But even supposing that it was the 
former, and that the Constitution of 1838 was the rule which 
should have governed its acts, it is clear that it had perfect 
authority and power to finally approve that treaty. I have 
maintained that the arrangement of limits did not imply a 
constitutional amendment or reform, and I have proved it 
superabundantly. But in order that even the last vestige of 
doubt should be vanished in this respect, I beg to be allowed 
to refer to Article 42, chapter 13, of the Nicaraguan Consti- 
tution of 1858, which is the one now in force. It reads, as far 
as this special matter is concerned, in the following words : 

" Faculties of Congress in Separate Chambersr 

" It belongs to Congress, * * * 24. To decide by a 
two-third vote on the following subjects: * * * 3d. All 

LAWS FIXING THE BOUNDARIES BETWEEN THIS AND THE OTHER Ke- 

puBLics. "^' * * 5th. The eatification of all treaties, 
agreements and contracts of canalization, highways and loans 

ENTERED INTO BY THE EXECUTIVE." 

Before 1858 the marking out of the boundaries of the 
country was, according to a provision ad hoc of the Consti- 



81 

tutioii, a proper subject of a statutory law ; after the Consti- 
tution of 1858 the exception became the general rule. 

During half a century, therefore, both before and after the 
treaty of limits of 1858, it has been held in Nicaragua, as a 
constitutional principle, that the questions of limits are proper 
matter for secondary laws or statutes, to be enacted by or- 
dinary legislatures, without the special requisites or proceed- 
ings which are necessary for the enactment of organic laws. 

All the efforts of Dialectics which Senores Aj'on and Ri- 
vas have made to convey the idea that the treaty in question 
involved, or implied, an amendment or a reform of the or- 
ganic laws of Nicaragua, have fallen to the ground before 
the literal, plain, express, and unmistakable text of the Nic- 
araguan Constitutions themselves. 
6 



Chaptee v. 

THE TREATY OF LIMITS WAS EATIFIED, NOT ONCE OR TWICE, BUT ON SEVERAL 
REPEATED OCCASIONS, BY THE NICAEAGUAN LEGISLATURES. 

It lias been shown in the preceding chapters that the treaty 
of limits was not concluded and approved under the sway of 
the Constitution of 1838 ; and, furthermore, that, even in case 
that such a thing should have happened, it would have been 
sufficient for the perfect validity of the said treaty that the 
ratification by one Legislature had been obtained because 
the treaty did not involve any amendment or reform of the 
organic law. ' ' 

But in order to follow up and refute in every respect the 
arguments of the opponent, I will now take it for granted 
that the approval of the treaty did indeed involve a consti- 
tutional reform, and that, therefore, two legislative ratifica- 
tions were required. 

Under this aspect of the case I shall set forth and prove 
that not only those two ratifications, but many others subse- 
quent, have been imparted to the treaty. 

In 1858 Mr, Felix Belly asked the Government of Nic- 
aragua for a grant for the opening of an interoceanic canal. 
In 1859 the petition was referred to the Chambers ; and 
the Chambers, before taking any action, having in view the 
.provisiojis of the treaty of limits, decided that the Executive 
should first cotnply, in fall, with Article YIII of the said 
treaty,^ and the Executive did as directed. 

Lately, in the same year, 1859, the same Chambers which 
had respected and obeyed Article YIII of the treaty of limits, 
decreed by one of the articles of the law enacted by them in 
regard to the Belly canal, as follows : 



^Documents, Nos. 19 and 30. 



83 

" x4.rticle 4tli. In case that the line to be drawn, beginning 
on the Sapoa river on the Lake of Nicaragiia, and endinr^ in the 
Salinas Bay on the Pacific Ocean, should be considered prac- 
ticable by the engineers, the company shall be bound to 
select that line with preference to all others, for the route 
from the Lake of Nicaragua to the Pacific Ocean, and the 
route so opened shall be, by the same fact, and all along its 
extent, the definite limit between the two States of Nicaragua 
and Costa Eica. If not considered practicable this limit shall 
remain as it is 71010, siihject to suhsequent regulations.'^ 

As it is seen, the canal had to follow on the Pacific side, if 
possible, the same course as the line between the Sapoa river 
and the Salinas Bay, and become, whether built on one side 
or the other of the astronomic line marking the boundary, 
the definitive and permanent limit, forever dividing the two 
Republics. If the canal was built elsewhere, because the 
above said route proved to be impracticable, no change should 
be made on the frontier, which would remain as it was ; that 
is, as marked by the treaty of 1858, subject to subsequent 
arrangements. 

The Legislature and the Executive of Costa Kica adhered 
to the Belly contract ; and this was promulgated as law both 
in Nicaragua and Costa Rica.^ 

Can any one desire a more explicit recognition that the 
treaty was a law of Nicaragua ? Can any one desire a more 
authorized and authentic interpretation than the one given 
by the same Nicaraguan Legislature of 1859 '? 

The treaty did not require, indeed, any ratification ; but . 
it was certainly given to it by the Nicaraguan Chambers of 
1859. 

In 1861 the Nicaraguan Government, with the approval of 
the Legislature, entered into a contract with an American 



'Convencion Internacional entre los Gobiernos de Nicaragua y Costa 
Rica y Don Felix Belly para la canalizacion del Istmo. Managua Imprenta 
delProgreso, f rente al Palacio Nacional 1859. 

^ See Pamphlet named in the preceding note. 



84 

company for interoceanic transit. When the Government 
of Costa Eica was consulted about it, in obedience to Arti- 
cle VIII of the treaty of limits, the latter Government sug- 
gested, by despatch of the 2d of March, that a special clause 
should be inserted in the grant saving the rights acquired by 
Costa Eica under Article VI of the Canas-Jerez treaty of 
April 15, 1858, which reads as follows : 

" The Eepublic of Nicaragua shall have, exclusively, the 
dominion and sovereignty on the waters of the San Juan 
river from its origin in the Lake to its mouth in the Atlan- 
tic ; but the Eepublic of Costa Eica shall have, in the same 
waters, the perpetual rights of navigation between the said 
mouth of the river to a point three English miles distant this 
side of Castillo Viejo, for purposes of commerce, either with 
Nicaragua or with the interior of Costa Eica, through the 
San Carlos or Sarapiqui rivers, or any other way, starting 
from the part of the bank of the San Juan river which is 
hereby established to belong to Costa Eica. The vessels of 
both countries shall have the power indiscriminately to land 
on both sides of the river, in the part thereof in which navi- 
gation is common, without charges or tax of any kind, un- 
less levied by agreement between the two Governments." 

And, by note of the 4th of March immediately following, 
the Nicaraguan Secretary of State replied as follows : 

"National Palace, 

" Managua, March 4, 1861. 
" SiE : The Chamber of Deputies, upon consideration of 
the remarks made by you under instructions of your Gov- 
ernment, under date of the 2d instant, has been pleased to 
resolve as follows ; * * •* 

" And the Chamber further resolved to communicate to the 
Department under my charge for the information of Senor 

Volio, THAT BEFORE RECEIVING THE COPY OF HIS RESPECTABLE 
OEPICIAL DESPATCH, AND WHEN THE CHAMBER WAS ENGAGED IN 
THE EXAMINATION OF ARTICLE VII OF THE ABOVE-NAMED CON- 



85 

TRACT, IT HAD ALREADY RESOLVED TO INSERT A CLAUSE BY WHICH 
THE RIGHTS OF CoSTA EiCA WERE SAVED, AS SUGGESTED IN THE 
FIRST rOINT OF THE ABOVE-NAMED OFFICIAL DESPATCH, AND IN SO 

DOING THE Chamber has done nothing else than complying 

AVITH one of its MOST STRICT DUTIES." 

" And, bv order of the President, I transmit it to jou, sub- 
scribing myself at the same time your most attentive servant, 

"J. MIGUEL CARDENAS. 

" To the Licentiate Don Julian Volio, 

" Envoy Extraordinary and Minister Plenipotentiary 
" of the Rejyidylic of Costa Rica^ 

The foregoing despatch is the answer given to the note ad- 
dressed by Licentiate Don JuhanVoHo, Minister of Costa 
Rica in Nicaragua, under date of February 23, 1861, sug- 
gesting to the Government of Nicaragua to save by an especial 
clause in the contract of transit the rights acquired by Costa 
Rica under Article VI of the treaty of limits of 1858. 

Article VII, of the law making the grant in favor of the 
Central American Company of Transit, enacted by the Nic- 
araguan Chambers, confirmed and ratified, solemnly, the treaty 
of April 15, 1858 ; and anticipated the wishes of the Gov- 
ernment of Costa Rica, founded on the said treaty, by stating 
that, in doing so, they only complied with one of their most 
strict duties. 

In 1863 John E. Russell and Don Jose Rosa Perez sub- 
mitted to the Government certain propositions intended to 
be the bases for an enterprise of interoceanic transit through 
the Nicaraguan Isthmus ; and, the subject having been referred 
to the consideration of the Legislature, the latter resolved to 
refrain from taking any action on it until the Executive shoidd^ 
have complied with the provisions of Article VIII of the treaty 
of limits concluded vnth Costa Rica in 1858. ^ 

This w^jS a new authentic recognition by the Nicaraguan 
legislative power of the fact that the treaty was a law of the 

^ Documents, Nos. 30 and 31. 



86 

Republic. And if the second ratification spoken of would 
have been necessary, the recognition now made should be 
considered as such. 

In 1864 arrangements were undertaken in Nicaragua for 
•an enterprise of interoceanic canal, at the head of which ap- 
peared Mr. Bedford Clapperton Trevelyn Pirn, a Captain in 
the English Navy. The Government celebrated with him a 
contract, which was submitted to the consideration of the 
Chambers. And one of the modifications which the Legisla- 
ture made to the contract was to insert in it the express pro- 
vision that the contract would have no effect until the Execu- 
tive should have heard the opinion of the Government of Costa 
Rica.'^ 

The territory of Costa Rica was not touched in this case ; 
but the treaty of 1858 provided that Costa Rica should be 
heard in all grants of this kind, and the Chambers refused to 
consent to any omission on the part of the Executive in fulfil- 
ing an international engagement. 

We see, therefore, that instead of that second ratification, 
which in 1871 Secretary Ayon failed to discover, I have 
shown that actually there have been four, and I should still 
be able to show a great many more by only slightly perusing 
the laws of Nicaragua, which seem to be so lamentably un- 
known or forgotten by some of her first statesmen of the 
present day. 

If I open the volume published under the title of " Codigo 
de la Legislacion de la Republica de Nicaragua en Centro 
America" (Code of the Laws of the Republic of Nicaragua in 
Central America), compiled by Dr. and Master Lie. Don 
Jesus de la Rocha, by order of His Excellency the Senator 
President, Don Nicasio del Castillo, &c., &c., Managua, 1874, 
I find on its very first page a description of the territorial 
division of Nicaragua, made in pursuance of the laws of Au- 
gust 28, 1858, and March 2, 1859. And that description, 



' Pocument No. 33, 



87 

wliicli I do not copy here, owing to its considerable length, 
is based npon the treaty of limits with Costa Rica, and does 
not include, as it could not, in the Nicaraguan territory, 
the district of Nicoj^'a, which before the treaty had been dis- 
puted between the two Republics, and which after the treaty 
had been liually recognized to belong to Costa Rica. 

The law in which this territorial division appears, and 
which is the first one of Title 1, Book IV, of the Code of 
Nicaragua, is the basis of the administration of her Govern- 
ment in economical and political matters, as well as munici- 
pal, judicial, electoral, and in all that is relative to general 
police and public order. So the law itself declares. 

I do not feel disposed to enter into a minute examination 
of the domestic law of Nicaragua, and thereby exhibit fur- 
ther eloquent proofs, certainly to be found abundantly, that 
the treaty Avas deeply incorporated and embodied — if so it 
can be said — into all the branches of law, beginning with the 
Constitution and ending with the most secondary statute. 
Such a labor is unnecessary ; the proofs already given being 
sufficient to establish the truth of my assertion. One ratifi- 
cation was sufficient, and I have shown that four were given. 

Many and repeated have been, therefore, the legislative 
confirmations and ratifications made in Nicaragua of the 
treaty of limits of 1858 ; but the truth is that the Govern- 
ment of the said Republic does not repudiate that treaty 
because it lacks the formality of ratification by one Legisla- 
ture, but because it thinks that it is injurious to its interests. 

I am not the one who has made this strange assertion. Its 
author is no less a person than Gen. Don Joaquin Zavala, the 
Commissioner appointed in 1872 by the Government of Nic- 
aragua to treat with Dr. Don Yicente Herrera, Minister of 
Costa Rica. 

General Zavala, in his despatch of April 8, 1872, expressed 
himself as follows : 

" The public opinion of the country rejects the Canas-Jerez 
treaty, not because it lacks the ratification of one legis- 



LATUEE, but because since tlie unlucky day in which that docu- 
ment was signed it has considered it as highly injurious to 
the interests of the country and depressive to its dignity and 
autonomy."^ 

These words, which the Costa Rican Minister, with pro- 
found surprise and deep sorrow, read in an official despatch 
addressed to him, were transmitted by him to the Cabinet of 
Managua ; but this, far from taking them back, gave them, 
on the contrary, through Senor Don Anselmo H. Rivas, the 
Secretary of Foreign Relations, by despatch of April 18, 
1872, the most complete confirmation. 

And how could it be expected that those words would have 
been taken back if, as stated by Mr. C. A. Riotte, the United 
States Minister in Central America, in his note to Mr. Fish, 
Secretary of State of the United States, dated in Managua on 
the 20th of June, 1872, the editor of the official journal pub- 
licly maintained, in a paper named El Porvenir, that it was a 
maxim of international law that the stipulations of a treaty 
must be complied with only when advantageous, or as long 
as there is no power to break them ? Did not this untena- 
ble and revolting opinion receive general support instead 
of condemnation in the Republic of Nicaragua?^ 



^ This despatch is inserted in ' ' Documentos relatives a las ultimas nego- 
ciaciones entre Nicaragua y Costa Rica sobre limites territoriales. Canal 
interoceanico, Managua, 1873. 

^Foreign Relations of the United States in 1873, Vol. ii, p. 738. 



Chapter YI. 

THE PUBLIC LAW OF NICARAGUA RECOGNIZES THE PRINCIPLE THAT THE 
REPUBLIC IS BOUND BY AN INTERNATIONAL TREATY, WHATEVER THE 
IMPORTANCE THEREOF MAY BE. 

It lias been seen in tlie foregoing chapter tliat the deter- 
mination and alteration of the national territory does not 
belong in Nicaragua to the organic laws, but to statutory 
legislation. 

The Mcaraguan Public Law goes still farther, as I am go- 
ing to show. 

By the treaty, Zeledon-Wyke of January 28, 1860, Great 
Britain, up to that time protectress of what is called the King 
of Mosquitia, recognized the sovereignty of the Eepublic of 
Nicaragua over the whole territory under him ; but, in 1867, 
the very same power deemed it advisable to notify Nicaragua 
that the said Nicaraguan sovereignty over Mosquitia could 
not be understood to be full and complete, but limited to only 
those rights which, according to feudal law, the Supreme Lord 
retained in the domains of his vassals, and consisted only in 
preventing the fief from being alienated in favor of a third 
party. 

The Government of Nicaragua refused to accept such a 
construction which left to that Republic no more than a 
nominal sovereignty over a territory which really was an in- 
tegral part of her dominion, and suggested to Her British 
Majesty that the question should be submitted to arbitra- 
tion. The proposition was accepted, and by common con- 
sent His Majesty the Emperor of Austria was appointed 
to decide the question. 

From the very moment in which that matter was referred 
to arbitration, it was recognized as possible that the decision 
might be unfavorable, as it was to a great extent, to Nicara- 



90 

gua, and that thereby the national sovereignty might suffer 
detriment. Therefore, in order that the treaty of arbitration 
celebrated with Great Britain should be firm and binding 
upon Nicaragua, it was necessary that it should be clothed 
with all and each one of the formalities which the Constitu- 
tion prescribed. 

It cannot be believed that a serious Government as the 
Nicaraguan is, in dealing with such a grave and transcendental 
matter and with such a Government as that of Her British 
Majesty, would have indulged in mental reservations and 
omitted formalities constitutionally required for the validity 
of the treaty. It must be taken for granted, on the contrary, 
as has been said, that every required formality was faithfully 
complied with. 

But it appears that this treaty, which, no doubt, referred 
to a question much more important for Nicaragua than the 
one settled by the treaty of limits of 1858, since it did not 
involve a simple adjustment of disputed rights, but the affir- 
mation or negation of her sovereignty over an important 
portion of her territory which had been formerly recognized 
by Great Britain, did not obtain, howevee, double legisla- 
tive APPROVAL. And this being the fact, it seems that it 
proves by itself, without possible contradiction, that the pub- 
lic law of Nicaragua, in conformity in this respect with the 
laws of most civilized nations, recognized the principle that 
a nation binds itself by its public treaties, even in matters 
not purely commercial but concerning territorial integrity 
and the exercise of sovereignty. 

On June 2, 1881, Emperor Francis Joseph I rendered his 
decision, which, among other things, declared that the sov- 
ereignty of Nicara.gua over Mosquitia is not full, but limited ; 
that the Mosquito King has the right to use his own flag ; 
that Nicaragua has no right to control or take advantage of 
the natural productions of the Mosquitian territory, nor the 
power to regulate the commerce of the Mosquito Indians, 
&c., &c. And Nicaragua accepted with respect the decision 



91 

of His Apostolic Majesty, and ordered it to be complied with 
and carried out faithfully, without thinking for a moment 
that by invoking the omission of a double legislative ap- 
proval she might evade the consequences of a decision which 
indisputably affects her sovereignty and reduces the territory 
of the Eepublic. 

Far from that, the oflficial organ of the Government ex- 
pressed itself at that time in the following words : 

" Let us congratulate ourselves that questions as old (1865) 
and embarrassing as these have been settled in such a peace- 
ful and harmonious way." 

In view of this precedent it can be affirmed without hesita- 
tion that according to the Nicaraguan public law, in order 
to render international conventions firm and valid, no mat- 
ter Avhat their nature may be, and even when affecting the 
national territory and sovereignty, it is not necessary to 
amend the Constitution. 

Let it not be said that one thing is a treaty of limits and 
another thing a treaty of arbitration. As public treaties, the 
one and the other, there is no difference between them ; and, 
on the contrary, it plainly appears that the same effect, which 
is the dismemberment of the territory, or the abridgement of 
sovereignty, can be accomplished in the same way by each of 
them. 

If any difference can be found, or suggested, it will be in 
favor of the direct treaty of limits ; because if something is 
given up by it, something, or a great deal, is also obtained 
through it in compensation ; while in the treaty of arbitra- 
tion the whole thing is placed in danger. For this reason 
the effects of the treaty of arbitration are graver. 

The legal principle that the only one who can compromise 
or submit to arbitration is the same one who has the right 
to alienate the thing in controversy, is perfectly well known 
and needs no demonstration. From the point of view of the 
capacity and of the form of the transaction, there is com- 
plete identity between alienation, compromise, and submis- 
sion to arbitration. 



92 

When the dispute about Mosquitia was submitted to ar- 
bitration all the formalities and requisites which are now 
claimed to be wanting in the treaty with Costa Rica should 
have been also complied with, and, if they were not, their 
omission proves only that the public powers of Nicaragua 
did not consider them necessary, according to their constitu- 
tional law, for the validity of a treaty, whatever its impor- 
tance might be. 



Chaptek VII. 

THE WHOLE OF THE PKESENT CONTROVEESy BESTS SUBSTANTIALLY UPON 

THE USE OF A CERTAIN WORD VALIDITY OF THE TREATY IN GOOD 

FAITH. 

Now, I want to lay aside all that lias been said in the fore- 
going chapters in support of the perfect validity of the treaty 
of limits, and place myself on a ground much more favora- 
ble to the cause of the opponent ; that is, that the treaty 
really involved a reform of the Constitution of 1838. 

Even on that gi'ound, which I only accept for the sake of 
the argument, because it is false, I will show that the approval 
given to the treaty by the Assembly was clothed with the 
character of an amendment to the Constitution. 

If the argument of the opponent is carefully examined it 
will be found, without any great effort, that the whole of the 
present discussion rests fundamentally on the use, whether 
proper or improper, of one word. 

The preamble of the decree, by which the treaty of limits 
was approved, reads as follows : 

"No. 62. 

" The Constituent Assembly of the Republic of Nicaragua, 
in use of the legislative faculties with which it is invested, 
decrees," &c., <fec. 

Should the language just quoted have been changed into, 
and substituted by, the following : 

" The Constituent Assembly of the Republic of Nicaragua, 
in use of its faculties, decrees," &c., &c.; 
or simply by 

" The Constituent Assembly of the Republic of Nicaragua 
decrees," ttc, &c. — 
the present controversy would have been avoided. No one 



94: 

could have then said that a Legislature, and not a constituent 
body, had approved the treaty. 

The gist of the reasoning of Sen or Ayon lies in the word 
" legislative," which was used in the decree. Remove that 
foundation and the whole building raised upon it by Senores 
Ayon, Eivas, and Zavala will fall to the ground with a mighty 
crash. 

The question is, therefore, reduced to only one word. 

Now, it cannot be doubted that the Assembly acted seri- 
ously, and with the intention that its action should be effi- 
cient ; and under this assumption, and following the same 
order of ideas of the opponent, it must be reasonably sup- 
posed that it was only by mistake, or through a lopsus calami, 
that the decree of approval misstated the kind of power which 
was necessary to give the act all the desired efficiency ; other- 
wise, instead of an error, bad faith would be found, and this 
is inadmissible. 

And now, I ask, could ever the substance or the subject- 
matter of a decree be sacrificed to a simple, unessential form ? 
Could such a thing be possible when the Assembly held in its 
hands, in an indivisible manner, both the legislative and con- 
stituent powers, and could exercise, untrammelled, whichever 
of the two it might deem best ? 

Senor Ayon says that the Assembly intended to give a 
chance to a subsequent Legislature to examine such a grave 
and serious point as was the arrangement of limits with Nic- 
aragua. But, following this line of argument, I cannot per- 
ceive how the Assembly did not leave, also, to the subsequent 
Legislature the framing of the Constitution and the reorgani- 
zation of the country — points, both of them, which were indu- 
bitably of greater gravity than the fixing of limits. 

At the present age, only the theological casuistry of certain 
sects admits of sacramental words ; but the public law of 
nations admits of none, and truth and good faith, and not 
legal subtleties, are called to preside over the relations be- 
tween countries. 



95 

A word badly used, if, indeed, so used, which I do not ad- 
mit, in the text of the document witnessing the obligation 
contracted, never could destroy the efficiency of the substance 
or subject-matter of the obligation itself. 

Calvo, a well-accepted authority in the modern law of na- 
tions, in handling this question, decides it as follows : 

" When the expression, although intrinsically correct under 
the circumstances, does not convey the idea involved in it, 
but inexactly, it is evidently necessary, as the jurists say, to 
sacrifice the means to the end, set the word aside, and look 
at nothing else than the idea itself." ^ 

" International treaties," he says elsewhere, "are before all 
actus bojice Jidei." 

At the bottom of the more or less correct wording of the 
Nicaraguan approval of the treaty lays the consent of the 
Nicaraguan nation, expressed by an Assembly legally repre- 
senting her, vested with unlimited powers to reform the Con- 
stitution and to organize and regulate the relations, both 
foreign and domestic, of the Republic. 

If, for the validity of the obligation thereby contracted, 
it was necessary, according to the domestic law of the State, 
that the compact should be clothed with the character of a 
constitutional amendment, that character was given to it, 
virtually and implicitly, by the mere fact that the approval 
was made by a Constituent Assembly, with the full intent 
and purpose that it should be efficient in every respect. 
Whatever language was used in the preamble of the de- 
cree makes no difference. Put the badly-used word aside, 
and only consider the meaning which it was intended to 
convey. 

It is a principle of legal hermeneutics that, in the inter- 
pretation of compacts, both between private parties and na- 
tions, that sense which produces some effect should be pre- 
ferred to that which produces none. If the Assembly meant 



^ Calvo. Droit international, theorique practique. 



96 

to stipulate in favor of Nicaragua, and bind her, in lier turn, 
an intention about wliich no reasonable doubt can exist, it 
must be thought that it rather acted as a constituent body 
exercising all its faculties, than as a simple ordinary Legisla- 
ture with restricted powers whose deeds were subject to a 
subsequent ratification, of which no one dreamt at that time. 

On the 19th of August, 1858, the date of the new Consti- 
tution, the Constituent Assembly, which had framed it, en- 
acted a decree directing itself to continue to exercise the 
legislative power of the nation until the new Constitutional 
Congress should meet. 

If, after that date, the treaty of limits should have been 
approved, then some shadow of reason would exist for claim- 
ing that it had been approved by a legislature and not by a 
constituent body ; but as the ratification of the treaty was 
made some months before the 19th of August, 1858, at a time 
in which the Assembly was vested with all kinds of powers, 
it cannot be doubted that it acted in the capacity of a con- 
stituent body, and with the plenitude of faculties which was 
required to give perfect efficiency to its action. No other con- 
clusion can be reached in good faith — the only possible cri- 
terion in international conventions. 



Chapter VIII, 

EEPEATED ACKNOWLEDGMENTS OF THE VALIDITY OF THE TREATY BY DIF- 
FERENT NICARAGUAN ADMINISTRATIONS. 

It has been said in Nicaragua that the treaty of limits 
never reached perfection ; that it never went beyond the cat- 
egory of a project ; that it never served as a basis for laws 
or treaties, or for the relations between Costa Rica and Nic- 
aragua ; and that the Nicaraguan Government never recog- 
nized its validity. But there is such an abundance of docu- 
ments which prove the contrary that it would be tiresome to 
cite them all. For this reason I shall confine myself to the 
principal ones. 

In the " Official Gaceta " of Nicaragua, No. 15, of May 8, 
1858, the treaty of limits was published, not as a project, 
not as a law in process of enactment, but as an international 
compact already entered into, accomplished, and perfected, 
and having the Exequatur required for its being carried into 
effect. 

In the letter by which Gen. Don Juan Rafael Mora, Pres- 
ident of Costa Rica, took leave of Gen. Don Tomas Mar- 
tinez, President of Nicaragua, subsequent to the exchange of 
the ratifications solemnly made by the two Presidents, at- 
tended by their respective Secretaries of State, the following 
phrases occur : " The great purposes which caused us to 
meet in the city of Rivas having been fully accomplished 
with so much happiness, I return to my country," &c., &c. 
" I congratulate myself for having had the good fortune of 
signing, together with Your Excellency, the compact which 
puts an end to all our causes of misunderstanding and un- 
pleasantness." 

The official paper above referred to printed, also, the fol- 
lowing : " Those hands which have just grasped each other 
7 



98 

liave not done so in vain ; the assurances of peace and eter- 
nal friendship which have been given spring from a deep 
conviction, and snch a permanent one as scarcely has been 
seen to preside over the treaties among nations." 

Col. Negrete was given by the Government of Nicaragua, 
in recognition of his good offices, the rank and title of Gen- 
eral in the Nicaraguan army. 

All these facts and documents prove that the treaty was 
final, perfect, and binding upon the nation, and that Nicara- 
gua believed herself, with reason, to have been benefited by 
it. Shortly after the exchange of the ratification of the treaty, 
an enterprise of interoceanic canal was initiated in Nicara- 
gua. Under Article YIII of the instrument, Costa Rica had 
the right to express its opinion upon the subject, and the 
Nicaraguan Government, in compliance with the said provis- 
ion, informed the Government of Costa Rica of the nature 
and circumstances of the contract, and in the official despatch, 
in which the Nicaraguan Secretary of State transmitted that 
information, he took pains to state that he did it for the pur. 
pose of complying with the engageTnent of this Republic (Nic- 
aragua) loith Costa Rica, set forth in Article YIII of the 
treaty of limits, and in order that when the opinion of the Gov- 
ernment of Costa Rica is heard the proper final action may he 
taken hy this Government. 

At all times, and without a single exception, the Govern- 
ment of Nicaragua did always comply faithfully with the pro- 
visions of Article YIII, as shown by the documents ap- 
pended to this argument. 

But laying aside this point, which may be considered of 
secondary importance, and looking for something graver and 
more transcendental than the right acknowledged to Costa 
Rica of passing an opinion upon questions about canal and 
transit, I shall now refer to the most delicate subject of the 
frontier. 

By despatch of April 27, 1859, the Nicaraguan foreign 
office acknowledged that the national territory of Nicaragua 
ends at the Salinas Bay. According to Article II of the 



99 

treaty of limits of 1858, the Salinas Bay is the western ex- 
tremity of the border line. Therefore the declaration of the 
Nicaragnan Secretar}^ of State presupposed the validity and 
efficiency of the treaty which marked that limit. 

By official letter of August 3, of the same year, from the 
same Nicaraguan foreign office, Costa Rica was requested to 
withdraw its custom-houses and othei; revenue posts from the 
La rior river, which was the ancient boundary between the 
two countries, and situate them on the new line marked by 
the treaty of 1858, and, in order to avoid difficulties, it silg- 
gested the idea that the astronomical line provided for by the 
treaty should be actually and materially drawn and located. 

This shows evidently that the validity and efficiency of the 
treaty was recognized. 

Several years afterwards, on January 12, 1867, Nicaragua 
complained that a sanitary cordon established by the Gov- 
ernment of Costa Rica had trespassed upon her territory by 
crossing the frontier estabUshed by the treaty of 1858. This 
complaint implied the recognition of the validity of the treaty. 

This is as far as the western extremity of the line is con- 
cerned. Let us see, now, what happened in regard to the 
other extremity. 

On December 13, 1859, Nicaragua asked Costa Rica to as- 
sist her in improving the navigation of the San Jtian river, 
and said that she did not doubt the co-operation of Costa 
Rica, because, under the treaty of limits, Costa Rica had as 
much interest as Nicaragua in the navigation of the river. 

On September 5, 1860, Nicaragua reminded Costa Rica of 
the duty which devolved upon it, under Article IV of the 
treaty, to contribute to the defence of the San Juan river 
and of the Bay of San Juan, and to the custody of the other 
extremity on the border line, the Salinas Bay. 

In 1863 a grave diplomatic difficulty between the United 
States and Nicaragua grew out of certain claims made by 
American citizens before the Cabinet at Washington, wherein 
it was supposed that Nicaragua had publicly insulted the 
flag of the United States. 



100 

The Nicaraguan Minister, Don Luis Molina, handled the 
case successfully, and a settlement satisfactory to both par- 
ties was reached, wherein the principle was established, that 
on the Nicaraguan soil and waters no other flag could right- 
fully be carried than the one of Nicaragua. 

In the letter addressed to Mr. William H. Seward, Secre- 
tary of State of the United States, on October 7, 1863, the 
Nicaraguan diplomatist expressed himself as follows : 

" On the other hand I can assure Your Excellency that the 
present administration of Nicaragua does not feel disposed 
to consent that any other flag, except her own and the one 
OP Costa Eica, as boedebing state, should float in the 
navigation of her interior waters ; that it considered as un- 
authorized the use of the United States flag made by the Cen- 
tral American Transit Company, and even by the least of its 
laborers, for the purpose of evading the orders of the Gov- 
ernment and escaping the authority of Nicaragua ; and that 
it being persuaded that such an abuse can lead only to com- 
plications, it will maintain its right and demand that the 
aforesaid Company, or any other owing its existence to it, 
be rooted and nationalized in the country in accordance with 
the Law of Nations, and that the national flag be used pre- 
eminently whenever a flag be required within her jurisdiction, 
without admitting any other, except under exceptional cir- 
cumstances and through courtesy." 

There cannot be found a more striking acknowledgment 
of the rights of Costa Eica under the treaty of 1858. 

Neither the United States of America nor any other power 
has the right to carry its flag into the interior Nicaraguan 
waters, this right belonging only to Nicaragua herself by 
virtue of her sovereignty and to Costa Rica as a bordering 
7iation . 

The action of the Nicaraguan Minister in Washington was 
not only approved and commended, but especially rewarded 
by the Government of that country. 

The fact was made known to the Chambers, and they also 
approved what had been done. 



101 

lu 186-1 the project was made iu Costa Rica of opening a 
road from the interior of the country to the San Juan river, 
and notice of this enterprise was given to the Government of 
Nicaragua, and iu the answer made by the said Government 
on the 23d of August of the same year the following was said : 
^'T/iis 'road may be built up to the San Juan river ^ always 
within the territory of your Republic^ according to the treaty 
Ihnits made loith Nicaragua ; but it may also be built, for 
the sake of shortening the distance, in the territory which 
Nicaragua reserved for herself for the safety and protection of 
Castillo Yiejo and the communication between that castle 
and San Carlos ; and in that case a previous arrangement 
between the two Governments should be required." 

By the treaty of 1858 the Colorado river was declared to 
belong to Costa Rica. The Transit Company attempted to 
close the mouth of that river, and Costa Rica protested be- 
fore the Government of Nicaragua against that outrage. 

The Nicaraguan Government, under date of July 21, 1863, 
wrote to the United States Minister, and told him, for the 
information of the Company, that Nicaragua could not allow 
the mouth of the Colorado river, which was situated i7i Costa 
Rican territory, to be closed, and that it would resist it as 
Costa Rica did. In transcribing this communication to the 
Minister of Costa Rica, he added : " I assure you that my 
Government will always prevent any new work, which may be 
attempted in the territory of your Republic, from being exe- 
cuted." 

In 1866 another attempt was made to obstruct the mouth 
of the Colorado river, and Costa Rica again protested against 
it. The Nicaraguan Government, in despatch of June 26, 
stated that the Government of Costa Rica could rest assured 
that, on the part of Nicaragua, the rights claimed by it should 
always be respected, and that the proper care would be taken 
to prevent its interests from sustaining detriment. 

Can any one desire a more explicit confession of the validity 
of the treaty of 1858, and of the intention to faithfully com- 
ply with it ? ■ 



102 

In 1869, shortly before the denunciation of the treaty, the 
" Gaceta de Nicaragua " expressed itself as follows : 

" It is indubitable for the foregoing reasons that our contract 
of canal has been made under the most favorable auspices. 
What now remains is only that the Bepublic of Costa Rica 
co-operates on its part in its realization, and in fact the topo- 
graphic situation of the San Juan river and of the Lake of 
Nicaragua, which serve for some distance as dividing line 
BETWEEN THE TERRITORY OF BOTH REPUBLICS, demands that co- 
operation." 

The " Gaceta de Nicaragua " is the official organ of its 
Government. 

It is to be noticed that, a few months before, Gosta Rica 
had closed the mouths of the San Carlos and Sarapiqui 
rivers to the abusive traffic which was carried on in Nicaragua 
of the natural products of the Costa Rican forests on the 
right bank of the San Juan river. 

Shortly afterwards, Don Mariano Montealegre, Minister 
Plenipotentiary and Envoy Extraordinary of Nicaragua, pre- 
sented himself at San Jose, the capital of Costa Rica, en- 
trusted with the special mission to negotiate for the use of 
the waters of the Colorado river, to improve the San Juan, and 
for obtaining the consent of Costa Rica to the canal contract 
known as the Ayon-Chevalier. Both negotiations were 
founded upon the basis of the existence and validity of the 
treaty of limits. 

Now, in the presence of all this, let it be said, what is the 
faith with which it is asserted emphatically that the treaty of 
limits never reached perfection, nor did it serve as basis for 
laws and for the relations between Costa Rica and Nicaragua ; 
let it be said whether it is true that " there is not a single 
law, nor a single act having for basis that treaty." 

The convention of limits was punctually observed by both 
parties during 14 years in succession, but Senor Ayon had 
centred the ambition of his whole life in the success of the 
contract which he had celebrated with the French Senator, 



103 

Monsieur Chevalier, and this contract was frustrated, as Senor 
Ayou believed, by the will of Costa Rica. 

Senor Ayon, resenting this failure, considered that for the 
happiness of his country it was required that the treaty of 
limits should be made to disappear, and his fertile mind did 
not take long to find reasons for attacking it. 

The simple reading of the words with which the same 
Senor Ayon prefaces his pamphlet, entitled " The Question 
of Territorial Limits between the Republics of Nicaragua and 
Costa Rica, Managua, 1872," will be sufficient to prove how 
little favor his opinion met with, in the beginning, in his 
country. Here are his words : 

" I EXPECT THAT MY INSIST ANCE IN SAVING SUCH GEE AT OBJECTS 
(the HONOE of the NATION, HEE WELFAEE AND PEOSPEEITY ! * 
* * ) WILL NOT BE ATTRIBUTED BY MY COUNTRYMEN EITHER TO 
STUBBORNNESS, OR TO A DESIRE OF MAKING MYSELF CONSPICUOUS ; 
AND THAT EVEN IN CASE THAT MY IDEAS AEE CONSIDEEED AS EE- 
EOES OF THE UNDEESTANDING, THEY WILL BE OVEELOOKED AND 
EXCUSED ON THE GEOUND THAT THEY PEOCEED FROM MY ZEAL FOR 
THE PUBLIC GOOD. Of THOSE ERRORS I DO NOT CONSIDER THAT 
EVEN THOSE HAVING THAT ZEAL MORE DEEPLY ROOTED IN THEIR 
HEARTS ARE EXEMPT." 

Interest is a bad adviser, and the opinion of Senor Ayon 
soon found followers ; but it is worthy of remembrance what 
President Quadra, in his correspondence, above cited, with 
the Minister of the United States, plainly set forth. He said 
that " his honesty and good sense told him that Nicaragua 
should abide by the stipulations of the treaty, and not touch 
the old wound of Guanacaste " (Nicoya). 

But the sense of justice of Senor Quadra, and his upright 
spirit, could not prevail against the futile reasoning of Senor 
Ayon. 

The United States Minister in Central America, at that 
time, expressed himself as follows : 

" It is most unfortunate that Nicaragua herself, led on by 
that fatal man, Mr. Ayon, when Minister of Foreign Rela- 
tions, took the first false step." 



Chaptee IX. 

COSTA EIOA HAS NEVEK ADMITTED THAT THE TREATY OF LIMITS EEQUIEED 
FOE ITS VALIDITY FUETHEE EATIFICATION. 

It has been argued that Costa Rica acknowledged the in- 
vahdity of the treaty of 1858 by the fact that the Secretary 
of Foreign Relations of Costa Rica, Don Agapito Jimenez, 
in drawing up the convention concluded by him with the 
Plenipotentiary of Nicaragua, Don Mariano Montealegre, on 
July 21, 1869, allowed a phrase to be inserted in Article YI 
of the instrument stating that Nicaragua did thereby ratify 
that treaty. 

This action of Senor Jimenez, it is said, shows conclu- 
sively that, in 1869, the Government of Costa Rica recog- 
nized that the treaty of 1858 was not perfect ; since other- 
wise it would have been entirely unnecessary to ask for its 
ratification. This was precisely, they say, that second ap- 
proval which, according to the Nicaraguan Constitution, could 
really have impressed upon the treaty the rank or character of 
constitutional amendment in the matter of limits with Costa 
Rica. 

It is utterly incorrect that the Government of Costa Rica, 
through the instrumentality of its Secretary of State, Don 
Agapito Jimenez, did ever at any time ask the Nicaraguan 
Government for the ratification of the treaty of limits of 1858. 
The Costa Rican Government never doubted the validity of 
the treaty, and from the date in which it was signed until the 
present day, not a single act on the part of Costa Rica can be 
found which may show the slightest doubt, or the most in- 
significant hesitation, in that respect. Much to the contrary, 
all its acts reveal the assurance that it has now, and has had 
at all times, of the firmness and validity of that compact. 

Let us see what happened in 1869, and why the treaty of 



105 

1858 was mentioned in the Jimenez-Montealegre project of 
convention. For a long time some residents of San Juan del 
Norte, both foreigners and Nicaragnans, had been engaged on a 
large scale in the rubber trade, an article which is found in 
great abundance in the Costa Rican forests adjoining the 
San Carlos, Sarapiqui, and San Juan rivers. 

This commerce, which was carried on without permission 
of the Government of Costa Rica, caused the colony of San 
Juan for several years to be flourishing. Almost the whole 
of it was engaged in this trade. And there were some years 
in which, as acknowledged by the official organ in reference 
to a report of Don L. Urtecho, the Governor of San Juan 
del Norte, the exportation of rubber amounted to the sixth 
part of the whole exports of the nation. 

Nicaragua has 400,000 inhabitants ; the colony of San 
Juan, according to that paper, had only 736 ; the result could 
not but be astonishing. 

How was such an extraordinary production obtained ? The 
answer is very simple : by stripping the forests of the neigh- 
bor and exhausting at once the sources of the coveted juice. 

The Government of Costa Rica, then presided over by Lie. 
Don Jesus Jimenez, could not consent to such an abuse, and 
issued the decree of April 28, 1 869, forbidding the exporta- 
tion, without permission of the Costa Rican authorities, of 
the natural products of the public lands of Costa Rica situ- 
ated on the banks of the San Juan river, imposing severe 
penalties upon the violators of this prohibition and establish- 
ing watch-houses and revenue posts at the place of the con- 
fluence of the San Carlos and Sarapiqui rivers with the San 
Juan. 

This step, which was perfectly legitimate on the part of 
Costa Rica, because it legislated only upon its own terri- 
tory, did not excite any protest on the part of Nicaragua. 
Costa Rica made use of its right, and injured no one by do- 
ing so, although it affected thereby the principal industry of 
San Juan del Norte. Nicaragua was silent ; she had before 



106 

lier eyes the treaty of 1858, and that treaty forbade her to 
speak. 

To protest against the acts of the Government of Costa 
Kica and infuse new life into the extinguished industry, one 
thing was necessary, and that was the disappearance of the 
treaty. It was then, when for the first time, the thought 
presented itself of ignoring it ; and the deliberations on the 
subject were not conducted so secretly as not to reach the 
ears of the Costa Eican Government. It was then when Don 
Mariano Montealegre came to San Jos^ as Envoy Extraor- 
dinary of Nicaragua, with the mission of securing the ad- 
herence of Costa Eica to the Ayon-Chevalier contract of 
interoceanic canal, and also the use of the waters of the 
Colorado river. 

These negotiations, entrusted to the Nicaraguan diplomatist, 
necessarily presupposed the firmness of the treaty of 1858 ; 
and upon that basis, and no other, the convention to be made 
ought to be as it was framed ; so it is clearly shown by its 
language from the first to the last word. Sen ores Jimenez 
and Montealegre proceeded with frankness, loyalty, and good 
faith, and agreed with each other to smother the germ of a 
quarrel, remote, but possible, between countries called for 
many reasons to become united, which might lead them to 
disastrous consequences. On the part of Secretary Jimenez 
there was no doubt or hesitation in regard to the validity of 
the treaty ; but as the possibility of a contention in this re- 
gard had become known, it was sound policy to cause the 
Nicaraguan Government to put itself on record with an ex- 
press declaration in this regard. That is what was done in the 
Jimenez-Montealegre project of convention. Senor Monte- 
alegre, on his part, abounded in the same feelings ; and the 
clause was drawn up in the way it reads. Now, forgetting 
the facts, it is attempted to be turned against Costa Eica. 

In 1869 Senor Jimenez might have been thought to be too 
suspicious ; but the facts have subsequently come to prove 
that his lack of faith, not in the treaty and its validity, but 



107 

iu the will of the public men who Avere called to execute it, 
was unfortunately well founded. 

These are the facts such as they happened ; and it is there- 
fore untrue that Costa Rica did ever ask Nicaragua for the 
ratification of the treat}^ of limits, as if it were an imperfect 
and uncouchided convention. 



Chapter X. 

THE SECOND ALLEGED CAUSE OF NULLITY OF THE TREATY OP LIMITS, 
WHICH IS THE WANT OF RATIFICATION BY SALVADOR, EXAMINED IN 
GENERAL, 

The first alleged cause of nullity of the treaty having been 
examined and refuted under all its aspects, I shall now pass 
to the consideration of the second. 

It is said that Article IX of the treaty of 1858 stipulated 
that, " under no circumstances, even in case that the Repub- 
lics of Costa Rica and Nicaragua should unfortunately find 
themselves in a state of war, it shall be permitted to them 
to wage hostilities against each other either at the port of 
San Juan del Norte, or the San Juan river, or on the Lake 
of Nicaragua." It has been said, further, that Article X of 
the said treaty stated : " That the stipulation of the forego- 
ing article, being of essential importance to the proper protec- 
tion of the port and river against a foreign aggression, which 
would affect the general interests of the country, the strict 
compliance with it remains under the special guarantee, which, 
in the name of the Government Mediator, its Minister Pleni- 
potentiary is disposed to give, and does hereby give, by vir- 
tue of the faculties which he declares to have been conferred 
upon him for that purpose." 

Upon these two clauses, foreign by their nature to the 
question of limits, which was the primordial object of the 
treaty, as shown by its own title, and which were no more 
than an appendix, not affecting at all, nor being able to affect, 
the subject-matter of the principal obligation, the Govern- 
ment of Nicaragua has raised the following argument : 

The Government of Salvador w^as an essential contracting 
party to the treaty, and the lack of its signature destroys the 
force and effect of the compact. 



109 

The guarantee of Salvador was not only a condition for the 
vahdity of the treat}', but a condition shie qua non. 

Tliat condition being clothed with the character of suspen- 
sive, the treaty covild not begin to be operative, even after its 
ratification by Nicaragua and Costa Rica, until Salvador 
should have ratified it. 

The guarantee and the ratification having failed, the whole 
structure of the treaty falls to the ground and becomes in- 
validated and useless in every respect. 

These are the grounds of law upon which the second 
cause of nullity has been founded. To them there has been 
added another one, moral and historical ; that is, that the 
treaty was obtained by violence by the President of Costa 
Rica, Don Juan Rafael Mora, who compelled Nicaragua to 
give away all that he was pleased to demand ; and in speak- 
ing of the treaty it is referred to as being a " disastrous mis- 
carriage brought about by that violence." 

It is sufficient to enunciate these reasonings of the Nicar- 
aguan statesman and historian, Senor Ayon, to perceive, at 
once, that they were due exclusively to an almost inconceiv- 
able dialectic effort, so artificial and strained as to fall of its 
own weakness. 

If there is any difficulty in answering them, it is not cer- 
tainly on account of their incorrectness, or because their 
faults are not transparent; but on account of their own 
subtlety and rather incoercible nature. It is always difficult 
to handle what lacks substance. 

The arguments of Senor Ayon rest upon a lamentable con- 
fusion of facts and doctrines. 

The statement is incorrect that the Government of Salva- 
dor is an essential contracting party to the treaty of limits, 
which was concluded only between Costa Rica and Nicaragua, 
and in which the Government of Salvador was primarily a 
fraternal mediator, and secondarily, and only for an especial 
clause, accessory to the treaty, which was Article IX, a sec- 
ondary party to the same, as guaranteeing the compliance 
with the special stipulation contained in that article. 



110 

The statement is incorrect that the guarantee, the surety- 
ship, the accessory contract, became, by a strange legal evo- 
lution, the subject-matter of the compact, and converted itself 
into a condition suspensive of its effects, and not only a 
simple condition, but one of those most special and impor- 
tant ones which, in law, are called sine qua 7 ion conditions. 

The statement is incorrect that the said condition, even 
taking it for granted that it was stipulated, can ever be con- 
sidered to be suspensive. 

The statement is incorrect, in fine, that the want of ratifi- 
cation or signature by the Government of Salvador, and the 
consequent want of the guarantee, may legally produce the 
effect of annulling, as far as the principal contracting parties 
are concerned, either the special stipulation, in regard to 
which the guarantee was offered, or the agreement about 
limits. 

Method requires that each one of these points should be 
treated separately. But as the charge made against Costa 
Eiica, with marked injustice, that the treaty was obtained by 
violence, is very grave, I must be permitted to begin this 
portion of my work by its refutation. 



Chapter XI. 

WHETHER THE TREATY OF 1858 WAS OR WAS NOT THE RESULT OF 
VIOLENCE USED AGAINST NICARAGUA BY THE ADMINISTRATION OF 
DON JUAN RAFAEL MORA, PRESIDENT OF COSTA RICA. 

This is not tlie opportunity to recall to . mind tlie action 
of Costa Eica when Nicaragua saw herself conquered 
by the very same foreign element which she had called 
to her country to mingle in their domestic troubles. Costa 
Eica was the first to raise the cry of war against the 
usurper of the public power of Nicaragua, and the last to 
retire from the field of battle. I shall not enter into any ex- 
planations of this kind, even in face of the provocation of the 
opponent, and of the recriminations untenable in point of 
justice, made by Secretary Ayon, as already remarked ; and 
I shall confine myself to showing that the treaty of limits of 
April 15, 1858, was not a disastrous ■miscarriage brought 
about by any violence exercised by Costa Rica against 
Nicaragua, her sister, but the result of peaceful nego- 
tiations, initiated by Nicaragua with the generous mediation 
of Salvador, conducted in the capital of Costa Eica, in a state 
of full and perfect peace, and sealed in Nicaragua under the 
auspices of the most cordial friendship and good understand- 
ing. Only by remembering what has been said about the 
outlet of the Lake of Nicaragua, or Desaguadero, it can be 
conceived how the historian of that country, Senor Ayon, 
blinded by the most vehement passion, has been able to state 
under his signature a fact so positively at variance with truth. 

To prove that the treaty of 1858 was the result of violence, 
it would be necessary to bring evidence that the Govern- 
ment of Costa Rica at the time of the negotiation of the said 
treaty, from the beginning thereof to the moment of the ex- 
change of ratifications, or at least during some part of that 



112 

time, whether a day or an hour, had caused its naval or land 
forces to go to Nicaragua, or stationed them on the frontiers, 
or prepared to take there said forces, or threatened in some 
way the ports of Nicaragua, or at least given orders to raise 
said forces for the purpose of making hostilities against that 
Republic. 

For the sake of clearness, and to avoid confusion of facts, 
dates, places, and persons, I deem it necessary to fix here 
the date which was the starting-point of the negotiations, 
and the date in which the negotiations were ended by the 
signing of the act of exchange. 

The first date was the 15th of February, 1858, a date on 
which Col. Negrete presented himself to the Cabinet of San 
Jos^ to open the negotiation, and the second was the 16th 
of May, 1858, the day on which the exchange of the ratifica- 
tions of the treaty took place. 

Long before the former of these dates, the peace between 
Costa Rica and Nicaragua had been fully re-established, al- 
though the question of limits was still pending. 

The proof of this assertion is found in the editorial of the 
Qaceta de Nicaragua, No. 5, of January 30, 1858. 

Another proof, more conclusive still, of this fact will be 
found in the following passage of the speech which Mr. 
Mirabeau B. Lamar, Minister Plenipotentiary and Envoy 
Extraordinary of the United States in Nicaragua, delivered 
on the day of his official reception there, on February 8, 1858. 
It reads as follows : 

"Allow me to conclude my remarks by setting forth how 
gratifying it is to me to see that the threatening storm of war, 
which a short time ago was impending between this nation 
and one of her neighboring sisters (Costa Rica), has vanished 
before the serene brilliancy of a most acceptable policy ; that 
Nicaragua and Costa Rica have put an end to their conten- 
tions, and that everything announces the prompt re-establish- 
ment, founded upon substantial basis, of their ancient rela- 
tions of fraternal concord. Who knows what may come out 



113 

of such a happy event ? It may, perhaps, bring Avith it the 
union of the two countries. And, indeed, I have sometimes 
thought that such a policy would necessarily be conducive 
to the happiness of the two Republics. In my opinion this 
union Avould be an example worthy to be followed by all the 
other States of Central America, the reunion of which under 
the ancient Federal constitution would give them not only 
peace, strength, and dignity, but would place them on the 
same level with other important nations, enabling them to 
compete wdtli the most enlightened in the career of prosperity 
and glory. If Nicaragua, inspired by such sentiments, should 
take the first step for the realization of such a great enter- 
prise she will crown herself with immortal glory and would 
deserve the gratitude of every heart which throbs for the 
welfare of this country and for the future progress of its 
people." 

The conferences between the plenipotentiaries, Gen. Don 
Jose Maria Canas and Don Maximo Jerez, took place in San 
Jose in Costa Rica. Gn April 15, 1858, the treaty was 
signed. For the sake of solemnity, and for the purpose of 
entering into another treaty of friendship, union, and alliance, 
which was happily concluded, President Don Juan Rafael 
Mora went over to Rivas, where he was received with the 
most perfect cordiality by General Martinez, the President of 
Nicaragua. There the exchange of the ratification took place. 
Subsequently to all this President Mora took leave of Presi- 
dent Martinez in the friendly terms which I have reported 
elsewhere. And then it was said by the official Nicaraguan 
organ that the hands of the illustrious Presidents had not 
been grasped in vain ; that the promises made and the faith 
pledged were due to a deep conviction, and to such a feeling 
as has seldom been seen to preside over treaties among na- 
tions, &c., &c. 

Where is, therefore, the violence which the President Don 
Juan Rafael Mora, according to Seiior Ayon, made against 
the Republic of Nicaragua, to take from her by force all that 
he deemed advisable to demand ? 



114 

The phrase of Senor Ayon, " So it was done, and the treaty 
of April 15, 1858, was the disastrous miscarriage brought about 
by that violence," will' never have force enough to counteract 
that other phrase, written in a decree of the Supreme Power 
of Nicaragua dated May 6, 1857, which reads as follows: 
" A vote of thanks is granted to the Republics of Costa Bica, 
Guatemala, Salvador, and Honduras in recognition of the 
gratitude of Nicaragua for the services that those nations 
have rendered her as true friends and sisters." 

This historical point having been rectified, I return to the 
principal ones. 



Chap TEE XII. 

THE GOVERNMENT OF SALVADOR WAS NOT AN ESSENTIAL PARTY TO THE 
TREATY OF LIMITS. 

That the Government of Salvador was not a principal con- 
tracting party to the treaty of limits of April 15, 1858, is 
shown by the mere inspection of its text. It is enough to 
read its preamble to become convinced of this fact, and to re- 
ject at once as sophistical, violent, and badly brought, what- 
ever may be said to the contrary. 

Here are the words with which it was set forth in the be- 
ginning of the instrument, who were the contracting parties, 
what were the object and purposes of the treaty, what was 
the reason or " consideration " for its conclusion, and what 
determined the two Governments to stipulate what they did : 

" We, Jos^ Maria Canas, Plenipotentiary Minister of the Re- 
public of Costa Bica, and Maximo Jerez, Plenipotentiary 
Minister of the Republic of Nicaragua, entrusted by our re- 
spective Governments with the duty of making a trea;ty of 
limits between the two Republics, which should set at rest 
the differences which have obstructed that best and most 
perfect understanding and harmony which must reign be- 
tween them, for their common safety and prosperity ; having 
exchanged our respective powers, which were examined by 
Hon. Senor Don Pedro R. Negrete, Minister Plenipotentiary 
of the Government of the Republic of Salvador, exercising the 
noble functions of fraternal mediator in these negotiations, 
who found them to be in good and due form, in the same 
way as we on our part did find sufficient, those which the 
same Minister exhibited ; after discussing with the necessary 
deliberation the points to be settled, with the assistance and 
in the presence of the representative of Salvador, have hereby 



116 

agreed to and concluded the following treaty of limits be- 
tween Costa Eica and Nicaragua." 

The simple reading of these words at once shows that 
those who agreed upon and celebrated the treaty were only 
the diplomatic representatiyes of Costa Rica and Nicaragua ; 
that the diplomatic representatiye of Salyador did no more 
than attending and proceeding as fraternal mediator, exer- 
cising his good offices, examining the powers giyen to the 
negotiator, assisting the one and the other with his friendly 
and disinterested adyice, and endeayoring to smother among 
them whateyer germ of dispute might occur and endanger 
the peaceful relations of the two countries. 

Nowhere does the treaty read that Salyador was one of the 
parties concurring to its formation. Nor could it read in 
this way, because the nature itself of the compact forbade it 
imperatiyely. If the subject to be disposed of was the di- 
yiding line between Costa Rica and Nicaragua, and not be- 
tween Costa Rica and Salyador, nor between Salyador and 
Nicaragua, the interyention of Salyador in the treaty which 
would mark that line could not be eyen practicable. De re 
tna non agitur Salyador might haye been told in reply to 
such an attempt on her part. And certainly that Republic 
would not haye by any means attempted to force herself as a 
contracting party into a compact which did not concern her. 

There is no doubt, nor can any be raised, about the fact 
whether the treaty does or does not say that the two con- 
tracting parties to it are Costa Rica and Nicaragua, and no 
one else. And when a thing is not expressed by words, there 
is at once the prim,a facie proof that it did not enter into the 
mind of the contracting parties. But if, through collateral 
argument, and through more or. less strained interpretation, 
an attempt is made to read what is not written in the instru- 
ment, then it will be necessary to turn the eyes to the com- 
mon law and look there in the light of its principles for the 
solution of the difficulty. 

In his standard work on Contracts, Parsons said that the 



117 

circumstances of each case and the situation and relation of 
the parties must be examined and taken into account for the 
purpose of determining who is really interested, or, in other 
words, who are parties to the transaction. " The nature, and 
especially the eutireness of the consideration," says the same 
writer elsewhere, " is of great importance to determine the 
nature of the obligation." ^ 

What were the circumstances which surrounded the treaty 
herein referred to, what the sitviation or relation of the par- 
ties thereto, Avhat the nature and entireness of the consider- 
ation which led to the adjustment and ratification of the 
compact ? 

Article I of the treaty explains all of this satisfactorily : 

" The Republic of Costa Rica and the Republic of Nic- 
aragua (that of Salvador is not mentioned) do hereby declare 
in the most express and solemn terms," so says Article I, 
"that if for one moment they felt disposed to combat each 
other for differences about hmits and for other reasons, which 
each one of the high contracting parties (Costa Rica and 
Nicaragua, not Salvador) considered to be legal and a mat- 
ter of honor ; now, after repeated proofs of good under- 
standing, of peaceful principles and of true fraternity, are 
willing to bind themselves, as they hereby formally do (Costa 
Rica and Nicaragua, not Salvador), to secure that the peace, 
happily re-established, should be strengthened each day 
more and more between the Government and the people of 
the two nations (the nations and Governments before indi- 
cated), not only for the good and profit of Costa Rica and 
Nicaragua, but for the happiness and prosperity, which, in a 
certain way (in an indirect or incidental way) redounds in 
favor of our sisters, the other Republics of Central America." 

All of this is clear and admits. of no misinterpretation or 
dispute. The two Republics of Costa Rica and Nicaragua were 
the ones which saw themselves profoundly divided by dif- 



' Parsons oa Contracls, Book 1, chapter ii, § 1. 



118 

ferent opinions in regard to their respective limits, and to the 
sovereignty stubbornly claimed by each one of them over 
certain determined territories. Both Kepublics were the 
ones which were about to wage war against each other and 
subsequently gave themselves mutual proofs of good under- 
standing, fraternity, and peaceful principles. Both, also, 
were the ones who wanted formally to put an end to those 
questions and settle those disputes by means of a treaty 
which they concluded, ratified, exchanged, promulgated and 
carried out. 

Who doubts, then, that if Salvador intervened in all of this, 
she did not do so, nor could she have done so, as an inter- 
ested party, or in the capacity of a contracting party to the 
treaty, but simply, as it was the fact, as a fraternal mediator, 
a moderator of the discussion? 

. All the articles of the treaty, from the 1st to the IXth, in- 
clusive, refer to nothing else than the question of limits, and 
the rights and duties of the two Republics of Costa Rica and 
Nicaragua, either over what was declared by them to belong 
exclusively to each country, or over what was stipulated that 
should be of common jurisdiction. 

Could it be doubted, in view of all this, and in the absence 
of all mention that the Republic of Salvador was a party to 
the treaty, and, what is more, in the absence of all reason to 
mention her as such, that the said Republic had no interest 
in the matter, nor was an essential party to the treaty ? 

If the remote and eventual interest which is mentioned at 
the end of Article X should give Salvador the character of 
contracting party to the treaty, the same thing could pre- 
cisely be said of Guatemala and Honduras, which are also 
sister Republics of Central America, and to which also, in a 
certain way, the non-disturbance of the peace on that soil 
proved beneficial. But this claim would be so absurd in 
itself that it has not occurred to any one nor admits of de- 
fence. 

The conclusion to be reached from the silence of the treaty 



119 

in its nine fundamental articles — articles which dispose of 
all the questions pending, and give to them solution satis- 
factory to the two contracting parties — confirmed and cor- 
roborated by the study of its text, its history, and its circum- 
stances, by the examination of the causes which induced its 
adjustment, and of the object which it had in view, the in- 
terests and advantages which it ought to produce, and in 
whose favor, clearly points out the answer to be given to this 
question, and is as follows : The Republic of Salvador was 
not one of the high contracting parties to the treaty of limits 
between Costa Rica and Nicaragua concluded April 15, 1858. 
Therefore, the want of the signature of Salvador in that treaty 
does not affect in the least the validity of the compact. 



Chapter XIII. 

THE GOVERNMENT OF SALVADOR WAS PRIMARILY A FRATERNAL MEDIATOR, 
AND SUBSEQUENTLY, AND IN REGARD TO ONLY ONE SECONDARY CLAUSE 
OF THE TREATY, GUARANTEEING PARTY OF THE EXECUTION OF THE 
SAID CLAUSE. 

It has been said by tbe Government of Nicaragua that the 
Republic of Salvador, by virtue of the special guarantee 
spoken of in Article X of the treaty, became one of the con- 
tracting parties. 

It is extremely singular that such an important matter as 
the determination of the question, who are the essential par- 
ties to a contract of any kind, and especially to an interna- 
tional agreement, should depend upon arbitrary interpreta- 
tions, under which what is collateral and accessory changes 
its nature and converts itself into primary and principal, in 
all and for all. 

Article X of the treaty says : 

" The stipulation of the foregoing article (the one by which 
the two Republics bind themselves not to commit hostilities 
against each other on the Lake, or in the San Juan river, or 
in the port of San Juan, even in case of war) being essentially 
important for the security of the port and river against for- 
eign aggression, which would affect the general interest of the 
country, the strict compliance therewith remains under the 
special guarantee which, in the name of the Government 
mediator, its Minister Plenipotentiary present, is ready to give, 
and does hereby give, by virtue of the faculties which he de- 
clares to have been vested in him for that purpose." 

Neither the words of this article nor its spirit authorize the 
presumption of Nicaragua that the Government of Salvador 
became through it one of the principal contracting parties. 

I need not enumerate particularly the acts and offices of 



121 

the Government of Salvador, in relation to this treg,ty, to 
cause the true and only character of its intervention to be 
established in a clear and uncontrovertible manner. 

That Salvador acted only in the capacity of a generous and 
amicable mediator is revealed clearly, and without any effort, 
by the words of the preamble which were copied in the be- 
ginning of this part of my argument. 

The diplomatic representative of Salvador intervened in 
the matter, and acted in it, as the preamble s&js, not as a 
party to the transaction, but "in the exercise of the noble 
functions of fraternal mediator in the negotiations." 

And it was in that capacity, and in no other, as stated by 
his credentials, that the above said high officer constantly 
acted. So he himself said to the two Governments, both on 
his arrival at Managua and San Jose, and in all his subse- 
quent steps. 

It was in that capacity that the two contracting Republics 
admitted him. 

It was, in fine, in that capacity that the two Governments 
recognized him when the moment of the exchange of the 
ratification arrived. 

The act additional to the treaty of 1858 is, perhaps, the 
document which best establishes and determines the true 
position, the principal and only character of the Govern- 
ment of Salvador, in the negotiations between Costa Rica 
and Nicaragua and in the treaty of limits by which they cul- 
minated. 

Here is that remarkable document : 

"Additional Act. 

" The undersigned. Ministers of Nicaragua and Costa Rica, 
wishing to give public testimony of their high esteem, and of 
their feelings of gratitude towards the Republic of Salvador 
and its worthy representative. Col. Don Pedro R. Negrete, 
do hereby agree that the treaty of territorial limits be ac- 
companied with the following solemn declaration : 



122 

" The Government of Salvador having given to the Govern- 
ments of Costa Rica and Nicaragua the most authentic proof 
of its noble sentiments and of its appreciation in all its value 
of the necessity of cultivating fraternal sympathy among all 
these Republics by interesting itself as efficiently and friendly 
in the equitable settlement of differences which have unhap- 
pily existed between the high contracting parties, and ob- 
tained this happy result through the Legation of both 
parties, owing in great part to the estimable and active 
offices of the Hon. Senor Negrete, Minister Plenipotentiary 
of that Government, who proved to be the right person to 
carry on its generous mediation, and has known perfectly 
well how to correspond to its intentions ; and owing, also, to 
the important assistance which the learning and impartiality 
of the said Minister have enabled him to render in the dis- 
cussion of all the matters concerning the subject, we, the heads 
of the Legations of Costa Rica and Nicaragua, in the name 
of our respective Governments, do hereby comply with the 
gratifying duty of declaring and recording here all the grati- 
tude which the patriotism, learning, spirit of fraternity and be- 
nevolence characterizing the Government of Salvador justly 
deserve from them. 

" In testimony whereof we have hereunto signed our names 
to the present instrument, which has been done in triplicate, 
in the presence of the Hon. Minister of Salvador, counter- 
signed by the respective Secretaries of Legation in the city 
of San Jose, the capital of Costa Rica, on the 15th day of 
the month of April, in the year of our Lord, 1858. 

" MAXIMO JEREZ. 

" JOSE MARIA CANAS. 

" MANUEL RIYAS, 
" Secretary of the Legation of Nicaragua. 

"SALVADOR GONZALEZ, 
" Secretary of the Legation of Costa Mica." 

The Government of Salvador was therefore a fraternal 
mediator, and nothing else. ■ 



123 

I do not think it necessary to increase the volume of this 
argument by bringing authorities to prove what is by itself 
evident ; that is, that the amicable mediator who intervenes 
between two parties, purely for the sake of humanity and 
mere generosity, without having any interest personal and 
direct in the matter, and without what is called in law con- 
sideration, cannot under any circumstances whatsoever convert 
himself by some kind of mysterious evolution into principal 
party to the case, into contracting party, and find himself, 
whether willingly or forcibly, for all the purposes of the com- 
pact, in the legal relation of one contracting party to another. 

To attribute to Senor Negrete and to Salvador a real and 
direct interest in the treaty would be to ignore the nobleness 
and generosity of their action. It would be more than that ; 
it would be to be ungrateful. 

It is therefore unquestionable that the primary part of the 
Salvador Government, in regard to this treaty, was the part 
of a friendly mediator, and nothing else. 

But it is claimed that the Government of Salvador, through 
the instrumentality of its minister, bound itself to guarantee 
the exact compliance with Article IX of the treaty. But 
this fact, although true, did not place Salvador in the position 
of principal party to the contract. Its having offered a 
guarantee to one of the stipulations specifically designated 
only placed that Government in the situation of a secondary 
or accessory party, exactly in the same condition as belongs 
in a common contract to the surety or guarantor who comes 
and guarantees the fulfilment of an obligation contracted by 
two private parties whatsoever. 

The guarantee in international law and the suretyship in 
private municipal law are the same thing, and, according to 
their own nature, neither of them can never be more than an 
accessory contract. 

"A guarantor," says Carlos Calvo,^ "is the one who re- 



'Dictionnaire de Dioit luternational. 



124 

spends either for his own act or for the act of another ; the 
one who becomes surety for the obligation of another." 

" Guarantee is the engagement contracted by the guaran- 
tor, and, in legal language, it is an accessory obligation des- 
tined to secure the execution of the pri7icipal uhligat{o?i.'' 

" Sometimes a third party becomes surety for the faithful 
compliance with a treaty." 

Tribune Chavot, at the meeting of the 21st Pluviose of the 
12th year of the French Eepublic, when the Code Napoleon 
was under discussion, expressed himself as follows : 

" Suretyship is but an accessory of the principal obliga- 
tion." i 

Treilhard, Counsellor of State, at the meeting on the fol- 
lowing day, said : 

" Suretyship is a thing accessory to the principal obliga- 
tion. * * * I have said that suretyship is something 
accessory to an obligation, and it cannot, therefore, exceed 
it. It would be contrary to the nature of things that what is 
accessory could exceed what is principal." 

In accordance with this principle, Dalloz, the great inter- 
preter of the French law, in the word Cautionnement (No. 
928 of his standard work, K^pertoire de la Legislation et de 
la Jurisprudence), says as follows : 

" The extinction of the principal obligation carries with it 
the extinction of the suretyship, because the accessory can- 
not exist without the principal. The reverse does not, how- 
ever, happen. The suretyship can cease to exist without the 
principal obligation losing its force T 

This doctrin^ is universal, and there is no human legisla- 
tion which does not admit of it. It has been recognized and 
proclaimed since before the days of the great Eoman jurists, 
whose immortal works have been the basis of the modern 
codes. And it is so universal as to constitute one of the 
most elementary principles of law. 



'Dalloz. Repertoire, ^ovdi "Cautionnement." 



125 

The guarantee may disappear without affecting in the 
least the principal obligation. The force, validit}^, firmness 
of the latter does not depend at all upon the validity and 
firmness of the former. 

If there are cases of exception to that principle they are 
rare and special ; for instance, when the guarantee has been 
made exjrressly an indispensable condition for the subsist- 
ence of the contract. In this case, if the guarantee fails 
the whole compact also fails, because such was the express 
will of the parties ; but in the case of the treaty herein re- 
ferred to there is no occasion to think of that exception, 
and the general rule must be observed. 

And as the question under consideration is, above all, a 
question of common sense, rather than quoting from authors 
and legal works I want to refer in support of my assertion 
to a fact of daily occurrence. 

Titius lends to Sempronius one thousand dollars under the 
guarantee of Cajus. Cajus may fail and not pay. He may 
argue that the instrument witnessing the obligation is false. 
He may plead error, violence, fraud, minority, &c., &c. He 
may, in a thousand different ways, evade the fulfilment of the 
guarantee. But no matter what he does, Sempronius will 
always be indebted to Titius in the sum that the latter lent 
him, and it will never be lawful for him to evade the fulfil- 
ment of his obligation by alleging that the guarantee failed. 

This is precisely the present case. Costa Rica and Nic- 
aragua bound themselves by a treaty, and Salvador offered its 
guarantee but did not give it. There is no guarantee. But 
the obligations of Costa Eica and Nicaragua remain firm and 
unreleased. No one of the two parties can rightly refuse to 
comply with the compact under the pretext that there is no 
surety to respond for it. 

The guarantee offered by Salvador was in truth such a sec- 
ondary thing that the contracting parties did not wait for it 
for the purpose of carrying the agreement into effect. Dur- 
ing the time in which it could or should have been given, no 



126 

* 

one of the two parties did anytliing to obtain it, and when 
the time passed neither of them entered the shghtest protest. 
The treaty continued in observance for many years after- 
wards. 

It was because the two high contracting parties acted in 
good faith and with the true intention of doing honor to their 
signature. The guarantee was not considered to be neces- 
sary. The Government of Salvador so also understood it as 
Senor Ayon himself says in his " Considerations : " 

" But neither the Government, nor the Congress of that 
Republic (Salvador), approved of or ratified the stipulation, 
and it may be depended upon that neither the Legislatures 
nor the Cabinets, nor even the people of Salvador, ever re- 
membered it again." 1 

The same thing happened in Nicaragua. Her successive 
Executives, Chambers, diplomatic ministers, tribunals, always 
complied faithfully with the compact, without thinking that 
there was a surety who might compel Nicaragua to comply 
with the duties which the treaty imposed upon her, or respond 
for Costa Rica. 

The discovery was made by Don Tomas Ayon, and this 
not in the beginning of the diplomatic contention initiated by 
him against the treaty, but very long afterwards, when he 
was hunting for faults in the treaty and its articles, and 
when in each one of its requisites he imagined to find a 
a cause of nullity. , 



' Consideraciones sobre la cuestion de limites territoriales, entre las Re- 
piiblicas de Nicaragua y Costa Rica. Managua, 1873. Imprenta de "El 
Centro Americano." 



Chapter XIV. 

THE GUARANTEE CANNOT BE CONSTEUED AS A CONDITION OF THE TREATY. 

One of the best known principles of law is that conditions 
are not presumed. Therefore, in order to consider that a 
condition has been established, one of the two following cir- 
cumstances is required : 

Either that the text of the instrument witnessing the obli- 
gation clearly, and expHcitlj says so, or that it is to be con- 
cluded, logically and necessarily from the spirit thereof, as 
the common and manifest will of both parties. 

That in the present case no express condition exists is a 
matter of self-evidence, and needs no discussion. 

The problem is to decide whether the condition exists by 
implication. 

" Condition," says Pothier,^ " is the case of a future and 
unceii;ain event, which ma}^ or may not happen, and on which 
the obligation has been made to depend." 

Dalloz^ says : " An obligation is conditional when it is 
made to depend upon a future and uncertain event, either by 
suspending it until the event happens, or affirming or rescind- 
ing it according to the happening or non-happening of the 
event." 

" In the former case what depends upon the event is the 
existence of the obligation ; but in the latter it is its efficiency. 
Condition is, therefore, a future and uncertain event upon 
which the legal bond constituting the o'bligation is made to 
depend ; or, rather, it is a kind of restriction attached to the 
existence of a legal relationship in connection with a future 
and uncertain event." 



'Oblig., No. 218-222. 

^ Repertoire, Art. Obligation, No. 1099. 



, 128 

This is also the opinion of Savigny.i 

Examples : I make you a present of a house, provided 
that I draw the large prize in the next lottery ; but the present 
will not be valid if within a year I receive new information 
about my son. 

In the first part of the promise a future and uncertain 
event is established as a legal restriction upon the subsistence 
of the obligation ; but in the second part another fact, also 
future and uncertain, is established as being the cause of the 
complete nullification of the contract. 

The first condition is " suspensive," the second " reso- 
lutive." 

Where, and when, or how, does Article X of the treaty of 
limits say that the effects of the agreement witnessed by it 
are to be suspended until the Government of Salvador gives 
the guarantee spoken of by it ; or that the whole compact is 
to be nullified if such a guarantee fails to be given ? No 
such a thing is said anywhere in the instrument. Nor how 
could it be said if even the article referred to does not require 
from the contracting parties themselves to guarantee each' 
other the fulfilment of that special obligation ; and when it 
plainly appears that the act of Salvador was one of mere 
liberality, neither asked nor demanded by either one of the 
contracting parties, and consisted only of a spontaneous and 
officious promise of assuming the duties of surety, which in 
the end was left undone ? 

All the circumstances, both preceding, simultaneous, and 
subsequent of the treaty of limits, combine together to 
show that the idea of rendering the guarantee of the Gov- 
ernment of Salvador a condition for the validity of the treaty, 
and much less a sine qua noii condition, never entered the 
minds of the high contracting parties. 

In the first place, the guarantee did not refer to all the 
clauses and stipulations of the treaty, or to a considerable 



■ Droit Romain, Vol. 3, p. 136. 



129 

portion of tliem, or even to any of the essential portions of 
the same, but confined itself to only one point, to a certain 
extent foreign to the qnestion of limits, which was the sub- 
ject-matter of the treaty — a clause indeed which might have 
found a better place in a treaty of peace and amity between 
the two nations. 

If the guarantee of Salvador would have referred to all 
the different stipulations of the treaty, or if at least the Min- 
ister of Salvador would have said that his Government 
guaranteed the stability of the frontiers such as marked out 
by the treaty, the pretension of the Government of Nicara- 
gua that the guarantee implied a condition, without ceasing 
from being groundless, would seem, however, somewhat more 
tenable. 

How can it be concluded that the instrument is in such a 
manner indivisible that if the accessory clause, which is the 
guarantee given in regard to a point also accessory. Clause 
IX, should fail, the whole of the compact also falls to the 
ground ? 

The principal stipulations of the agreement could certainly 
exist without needing the guarantee at all, and to such an 
extent this was true that the latter was not extended to them 
by the will and declaration of the contracting parties. 

Had they thought otherwise, either none of the clauses 
would have failed to be guaranteed or the treaty would never 
have been carried into effect. 

The indivisibility now claimed, far from being written in 
the text of the treaty, is plainly contradicted by it. 

Of such small practical importance was and is really the 
guarantee herein referred to, that the Government of Nic- 
aragua, as remarked before, did not think of it any more, 
and carried into execution the treaty as far as Nicaragua was 
concerned,» and demanded from Costa Eica the full and faith- 
ful execution of the same whenever deemed advisable. 

Should the omission of the guarantee have had the tran- 
scendental importance now claimed for it, it was natural 
9 



130 

that, during tlie 14 years elapsed between the signing of the 
treaty and the date in which, under the circumstances above 
explained, Secretary Ayon set forth before the Nicaraguan 
Congress the doubts which he is said to have entertained 
about the validity of the convention, some one of the Gov- 
ernments which Nicaragua had had in that time would have 
said at least one word to the effect of demanding that the 
guarantee should be carried out. 

It can be understood how little importance was attached 
by Nicaragua to the omission of the guarantee offered by 
Salvador, by considering that when Secretary Ayon submit- 
ted to the Chambers his alleged doubts, he grounded his 
theory that the treaty was invalid, on the want of a second 
legislative ratification, and also on the supposed acknowledg- 
ment by the Secretary Don Agapito Jimenez that it was not 
firm ; but he said nothing about the lack of the guarantee of 
Salvador. 

It would have been surprising for Senor Ayon to have for- 
gotten, under such circumstances as those then existing, this 
ground of nullity. Its omission shows the little importance 
that" it had in the eyes of the Government of Nicaragua itself. 

This argument did not come to the mind of Senor Ayon 
•until a long time afterwards ; and as from the text of Article X 
of the treaty no possible inference can be drawn, even under 
the most strained and violent construction, that it contains 
a condition, whether suspensive or resolutive, Senor Ayon 
attempted to derive the said condition from other sources and 
by way of implication. 

He resorted for that purpose to the legal doctrine and well 
known general principle that in the bilateral contracts the 
obligation of one of the parties is subject or subservient to- 
the fact of the other party complying with its own obliga- 
tions, and that, for instance, the seller of an article is bound 
to deliver it when the purchaser pays him the price, and that 
reciprocally the purchaser should pay the price before he 
becomes entitled to receive the article. But this doctrine 



131 

has not, nor can it have, practical application to the present 
case. 

Before invoking this doctrine against Costa Eica as a cause 
of uuUit}^ of the contract, it Avould be necessary to prove 
that Costa Eica ever failed to comply with the obligations 
contracted by it. And neither has this charge ever been 
made, nor can it be, since it has been an invariable principle 
of its politics to keep always faithfully its international en- 
gagements. And as Costa Eica never failed on its part to 
execute the treaty, Nicaragua cannot consider herself released 
from the obligations of the same. 

Secretary Ayon says that Costa Eica bound herself to give 
the guarantee or suretyship of Salvador for the purpose of 
securing the faithful execution of Article IX of the treaty. 
Where is that written in the treaty ? What it says is, that 
Salvador guarantees alone, and neither of the contracting 
parties gives the guarantee referred to. 

And if the language of Article X is so forcibly strained as 
to make it read (what it does not) that the two Eepublics 
bound themselves to guarantee each other the faithful exe- 
cution of that clause, the result would be, in good logic, that 
the fault is not of Costa Eica alone, but of both Nicaragua 
and Costa Eica, for which reason, as the fault was common, 
it cannot do any harm or benefit to either Government. 

Senor Ayon argues that the clause was written for the 
special benefit of Nicaragua, and for the purpose of protect- 
ing her against surprises of Costa Eica through the unpop- 
ulated regions of the Lake and the San Juan river. But to 
maintain this proposition is tantamount to ignore Article X 
of the treaty, because its language plainly and intelligibly 
expresses that the promise that no hostilities should be ever 
made on the lake and the river was mutual, and that the 
obligation of complying with this promise was also mutual. 
How can it be ignored that Costa Eica, according to the treaty, 
is joint owner of the Bay of San Juan, and that it has the 
right of navigation on the San Juan river, and that it has 



132 

therefore exactly the same interest as Nicaragua in securing 
that that route, which, in the future, will be its most important 
thoroughfare, should be sheltered from hostilities even in 
the unhappy event of a war with its neighbor ? 

The history of the treaty clearly says that the clause was 
written because the Bay of San Juan, the San Juan river, and 
the lake were an open road for the invaders of the Central 
American soil in 1855 and 1857. Struggles between Costa 
Kica and Nicaragua upon those places would offer foreigners 
an easy access to both countries to their common detriment. 

If Nicaragua owns unpopulated and undefended lands on 
the banks of the San Juan river, the right bank of the same, 
or the portion thereof which belongs to Costa Rica, is no 
more populated or better defended ; and if it were possible 
to think, as Senor Ayon says, that Nicaragua was anxious to 
protect her undefended frontier against surprises on the part 
of Costa Rica, there is no reason to suppose that Costa Rica 
herself did not entertain the same idea, because the circum- 
stances were equal for the two coijintries, and there was ex- 
actly the same possibility on the part of each one to open 
and carry on hostilities against the other on the places re- 
ferred to. 

No matter how strained the construction placed upon this 
mutual promise may be, it can never lead to the belief that 
the promise of guarantee made by a third party, Salvador, 
was an obligation on the part of Costa Rica in favor of Nic- 
aragua, as it was indispensable to convert it into a condition 
in favor of one of the parties and against the other. 

Granting even what is inconceivable, the most that can 
be admitted is that the guarantee was mutual or common. 
Senor Ayon says that it was not complied with ; but who 
failed to comply with it ? Was it Costa Rica ? Was it Nic- 
aragua? Either none, or both, failed; and, if both failed, 
neither party can found on its failure an argument of nullity, 
because reason and common sense declare that whoever 
makes a complaint has to rest on the foundation that he has 
on his part faithfully complied with the obligation. 



133 

Even granting, gratia ai^guendi, that Costa Kica was bound 
to guarantee to Nicaragua that it should not be hostile to 
her, even in case of war, at the places marked by Article X 
of the treaty, and that, by an extremely one-sided view of 
the case, Nicaragua had not, on her part, the same obliga- 
tion in favor of Costa Rica, still the alleged cause of nullity 
would not exist. At the most, there would be, in that ex- 
treme case, a proper matter for negotiation, or a temporary 
suspension of the effects of the treaty until the delinquent 
party, after being served with the proper notice, should com- 
ply with its duty. 

Carlos Calvo says in this respect what follows : 

" A treaty can be terminated before the period fixed for its 
duration when, besides the causes of modification or nullifica- 
tion just mentioned, one of the contracting parties refuses to 
fulfil its engagements, and gives thus to the other party im- 
plicitly the right of likewise freeing itself. * * ^- The non- 
execution may on the other side refer only to one clause rela- 
tively secondary (this would be the case with Costa Eica and 
Nicaragua in the present hypothesis), and may therefore not 
imply any intention of evading the other obligation of the 
treaty. In this case there is not necessarily a comphte and final 
rupture of the treaty, hut there ivill he oidy 7natters for confer- 
ences and negotiations ; or, in other words, a suspension of ac- 
tion until the reasons for refusing may have heen considered 
and weighed in due form y^ 

When did Nicaragua ask Costa Eica to give the guarantee ? 

She never did, because on her own part she would have 
had to submit herself to the same burden. 

The guarantee had been set aside, in fact, from the time of 
the making of the contract ; and if it is now spoken of it is 
only because it furnishes one of those means to which the 
contending parties are accustomed to resort to under certain 
circumstances in support of untenable causes. 



'Droit International, &c., Part 1, §739. 



Chaptee XV. 

EXAMINATION OF THE LATTER REASONS ALLEGED BY NICAEAGtTA IN SUPPORT 
OF HER THEORY THAT THE TREATY OF LIMITS IS INVALID. 

It is said that the treaty of limits abridges the sovereignty 
of Nicaragua, deeply wounds her dignity, and causes great 
injury to her interests. 

I have already transcribed what Gen. Don Joaquin Zavala 
set forth in connection with this point, and was assented to 
and confirmed by the Mcaraguan Secretary of State, Don 
Anselmo H. Rivas. 

By the explicit confession of the Mcaraguan Government 
the validity of the treaty is not impeached because it lacks 
this or the other formality ; but because it is alleged that it 
does injury to the interests of Nicaragua, and wounds her 
national pride, and abridges her sovereign rights. 

But when or where has it happened that the interest of 
one of the contracting parties is a legitimate cause for the 
nullification of the compacts ? There is no Code in the 
world which has ever sanctioned such an immoral principle ; 
while, on the contrary, every law and statute ever enacted es- 
tablishes that a contract once made and perfected is the law 
to which the contracting parties must submit on the partic- 
ular matter which has been the subject of their agreement ; 
and that neither of the said parties can be released from 
their respective engagements and exempted from complying 
with them except by mutual consent. 

This principle governs the contractual relations both among 
private parties and nations. It would be tedious, and even 
offending to the common sense of humanity, to look for au- 
thorities in support of these views. 

An equitable arrangement, secured by the mediation of a 
friendly government, whose offices have been accepted with 



135 

gratitude, setting at rest a controversy which liad been pend- 
ing for many years — sometimes in quiet diplomatic discus- 
sion, sometimes little less than with arms in hand— never can 
be construed as an abridgement of the sovereignty, or as a 
wound to the dignity and pride of the nation which assented 
to it. 

All nations adjust by settlements of this kind the differences 
which uuavoidabl}^ arise among them, and by these arrange- 
ments they rather reaffirm their independence, and secure all 
the benefits which peace brings with it. 

By the treaty of limits the Nicaraguan Territory, far from 
having sustained any kind of dismemberment, proved on the 
contrary to have been enlarged ; and this is shown by his- 
torical documents of incontrovertible strength, which I have 
quoted elsewhere. But supposing that this is not the fact, 
and that Nicaragua actually gave up a portion of more or less 
extent of her territory, who has ever said that such giving 
up brings with it the nullity of the compact by which it was 
witnessed ? A nation can never renounce her own independ- 
ence as an individual can never alienate his freedom ; and 
the compact where such things were stipulated would be void 
in itself. But nations can renounce and give up, and they 
do so daily, a portion of their territory, without any attempt 
having ever been made, except the present one of Nicaragua, 
to nullify the agreement on this ground. 

Should such a principle be admitted, there would be no 
nation who would acknowledge to be bound by international 
compacts affecting their frontiers. Mexico would come and 
ask for the nullification of the treaty of Guadalupe-Hidalgo, 
made by her with the United States in 1848. Guatemala 
would come also and claim that her treaty with Mexico, of 
1883, is null and void, and the result would be, in fine, that 
the repulsive and famous dream of Hobbes, " the war of all 
against all," would be realized. 

The principle which I maintain is so universally admitted 
that not even in case of war, in which force, it might be 



136 

said, is tlie cause whicli elicits the consent, the invalidity of 
the compact cannot be claimed. 

In connection with this, Dalloz says as follows : 

" To show that these treaties (the unequal ones) are bind- 
ing upon the contracting parties, it is enough to think that 
when two nations resort to war, they accept beforehand the 
consequences of their action. Each one on its part hopes to 
succeed against the other, and both must abide by the re- 
sult. The one who cedes something would certainly, if vic- 
torious, have demanded the same thing, and the title so ac- 
quired would have been considered by it no less valid and 
permanent. If the title is good when in favor of one, it must 
also be good when in favor of the other." 

" It is a matter of public interest that every agreement or 
compact should be held binding upon the parties who enter 
into it ; and besides this there is another consideration which 
must be taken into account when the agreement or compact is 
a treaty of peace. This treaty is a compromise between the 
conqueror and the conquered, and a protection for the latter 
against the former because it affords the only way of escap- 
ing the law of might. The conquered party submits to sac- 
rifices, but it has to abide by its promises, since otherwise 
the conqueror, being unable to rely on its faith, would be 
compelled to protract the war. 

To secure the reign of order among the different states, it 
is absolutely necessary that their respective engagements 
and compromises should be held sacred. ^ 

When nations (the" same as private parties) think they 
have been wronged by the provisions of the treaties entered 
into by them, the way to obtain redress, suggested by reason 
and principle, is not to denounce them ; but to enter into ne- 
gotiations for the purposes of obtaining the desired change, 
always upon the impregnable foundation of the eespect 

OF THE PLEDGED FAITH AND THE COMPLIANCE WITH THE WORD 
GIVEN. 



* Dalloz. Repertoire, word Trait§ International, Art. 1, § 4, No. 127. 



THIRD PA.RT. 



THIRD PART. 

ANSWER TO THE QUESTIONS PROPOUNDED BY NIC- 
ARAGUA IN REGARD TO THE RIGHT CONSTRUC- 
TION OF THE TREATY OF LIMITS. 



Chapter I. 

WHETHER THE STARTING-POINT OF THE BORDER LINE IS MOVABLE AS THE 
WATERS OF THE RIVER, OR WHETHER THE COLORADO RIVER IS THE LIMIT 
OF NICARAGUA, AND WHETHER THE WATERS OF THE SAN JUAN RIVER CAN 
BE DEVIATED WITHOUT THE CONSENT OF COSTA RICA. 

In compliance with Article YI of the Convention of Arbi- 
tration concluded at Guatemala, and by telegram received 
at the city of San Jose, of Costa Rica, on the 23d of June 
ultimo, the Government of Nicaragua communicated with the 
Government of Costa Rica the eleven questions or points 
which the former considers to be of doubtful interpretation, 
and which are to be submitted additionally to the decision of 
the Arbitrator. 

For Costa Rica there is not one single point in the treaty 
of limits which is not perfectly clear and intelligible, or the 
interpretation of which admits of any doubt. For this rea- 
son I do not submit to the consideration of the Arbitrator 
any question relative to this point, and shall have to confine 
myself to answer those which the Government of Nicaragua 
has propounded, and dispel any doubt which might arise 
therefrom. 

But while it is true that the treaty is clear, it is also true 
that the doubts propounded by Nicaragua exhibit such 
subtlety and ambiguity as scarcely can be found elsewhere, 



140 

the intention being transparent, that they have been formu- 
lated to evade, in a subsidiary way, the effects of the treaty 
of 1858, even in case that it should be held valid. 

The interrogatories of Nicaragua are capable of admitting 
systematical arrangement and classification in relation to the 
different subjects to which they refer respectively ; and so, 
in order to avoid repetitions and to present in its true light 
each one of these subjects, it has seemed to me advisable to 
somewhat modify the order in which the questions appear 
stated and form several groups which may be studied in- 
telligently and more conveniently. 

The first group of questions herein referred to consists of 
questions Nos. 1, 7 and 9, such as stated on pages 9 and 10, 
and read as follows : 

" (1.) Punta de Castilla having been designated as the be- 
ginning of the border line on the Atlantic side, and finding 
itself according to the same treaty, at the mouth of the San 
Juan river ; now that the mouth of the river has been 
changed, from where shall the boundary start ? " 

" (7.) If, in view of Article Y of the treaty, the branch of 
the San Juan river known as the Colorado river must be con- 
sidered as the limit between Nicaragua and Costa Eica, from 
its origin to its mouth on the Atlantic ? " 

" (9.) The eminent domain over the San Juan river from 
its origin in the Lake and down to its mouth on the Atlantic, 
belonging to Nicaragua according to the text of the treaty, 
can Costa Rica reasonably deny her the right of deviating 
those waters ? " 

I shall set forth at the outset that question No. 1 is am- 
biguous and admits of three interpretations, as it may 
mean either that the new mouth of the San Juan river is 
the Colorado river, into which- a great part of the waters of 
the former have been emptied ; or that the new mouth is the 
branch named Taura, also a large one during late years ; or 
that it is the " Cano de Animas," which is nearer to the 
original mouth than the Taura and the Colorado rivers. 



141 

Owing to this ambiguity of the question, three different 
answers have to be given. 

The San Juan river, which is the outlet (Desaguadero) of 
the Lake of Nicaragua, carries the waters of this lake to the 
Caribbean Sea through a course of about 150 miles, but in 
reaching a certain point, some miles distant from the coast in 
a straight line, forks itself in two branches, one of which 
runs towards the east, which is called the Colorado river, 
while the other, which is the trunk, continues towards the 
north and empties into the Bay of San Juan, not, however, 
without having formed two other branches at a short distance 
from the mouth, which are the streams named Taura and 
Cano de Animas. 

The map which I accompany hereto, marked No. II, made 
in 1851 by Baron A. Von Bulow, shows the course of the 
San Juan river and the peculiar shape of its delta, divided 
into two islands, one between the San Juan and the Taura 
rivers, and the other between the Taura and the Colorado 
rivers. 

The location and course of the new stream called Cano de 
Animas is also shown by Map No. XI appended to the " Re- 
port of the United States Nicaraguan Surveying Party, 1885, 
by Civil Engineer A. G. Menocal, IT. S. N.," a copy of which 
I also append. 

On the left side of the Bay, on the ancient mouth of the 
river, the port of San Juan del Norte, otherwise called Grey- 
town, is situated, and on the right there is the strip of land, 
the extremity of which is known by the name of Punta de 
Castilla Point. 

These geographical antecedents having been given, nothing 
is easier than rightly understanding Article II of the treaty 
of limits of April 15, 1858, and satisfactorily answering the 
three questions propounded. 

Article II of the treaty reads, that the dividing line be- 
tween the two Republics will begin at the extremity of 
Punta de Castilla Point on the mouth of the San Juan river, 



142 

and that it will continue along the right bank — that is, 
the Costa Rican bank^ — of the same river up to a certain point 
three English miles distant from Castillo Yiejo. Therefore 
it is plain that both Punta de Castilla Point and the whole 
delta formed by the San Juan and Colorado rivers are Costa 
Eican territory. 

The question propounded by the Government of Nicara- 
gua might, indeed, have been formulated in a plainer way, as 
follows : " Whether in spite that the treaty of limits of April 
15, 1858, establishes that the starting-point of the border 
line between the two Republics on the side of the Caribbean 
sea is the extremity of Punta de Castilla Point, and that the 
frontier runs from there along the right bank of the San 
Juan river up to a point three miles before reaching Castillo 
Yiejo, would it be permissible for Nicaragua to remove that 
starting-point and that frontier, and carry both to either 
Cano de Animas or the Taura river, or, better still, the Col- 
orado river, which are within the Costa Rican territory and 
in the delta formed by the Colorado and San Juan rivers, for 
the reason that, subsequently to the treaty of 1858, the vol- 
ume of the waters of the San Juan river has decreased, and 
because the Colorado river has become more copious, and 
because new mouths have been opened on the sea, always 
inside the delta belonging to Costa Rica ? " 

The rigor of logic demands that this question should be 
answered negatively. The three mouths of the Colorado, 
the Taura and the San Juan rivers, which now exist, also 
existed at the time in which the treaty was made. The three 
rivers then flowed to the Atlantic as now, and each one had its 
own separate and distinct mouth. What happened with them 
in 1858 is the same that happens at present, through a tract 
of many miles. And the limit ascribed by the treaty to the 
two Republics is neither the Colorado river, nor the Taura 
stream, nor the Cano de Animas, but the river or branch 
which was known at the date of the compact by the name of 
the San Juan river, at the extremity of the right bank of 
which Punta de Castilla Point is found. 



143 

The geographical point named in 1858, the mouth of the 
San J\ian river, has not changed its position, although it may 
be that the volume of waters emptied through it into the ocean 
is now less than in 1858, and although it may be also that the 
waters of the Colorado river have increased or found new 
outlets through the Cano de Animas or any other opening. 

Both_ legally and geographically each one of these points 
is diiferent and independent of the other, as well as per- 
fectly visible, and no one of the contracting parties can be 
allowed by its own will, and according to its own convenience, 
to take the one for the other. 

In other words, the geographical point, which, in the treaty 
of 1858, w^as called the mouth of the San Juan river, has not 
changed in position, whatever the capricious course of its 
waters (which never have run on the same bed) might have 
been. The Bay of San Juan de Nicaragua, where Greytown 
is located, is now found in the same place where it always 
was, Avhere it appears to have been by all the maps contem- 
porary to the treaty ; and the mouth of the Colorado river, 
much more to the south, is found now exactly on the same 
place as it was in the beginning, and the mouth of the Taura 
river is now also where it was. The geographical position of 
all these places remains the same as when the treaty was 
made, and the number of new mouths, or outlets, or open- 
ings, which may have been made afterwards is absolutely 
immaterial. 

The work of nature has produced a diminution of water in 
the San Juan river, and a correlative increase in that of the 
Colorado river, and also new outlets or mouths ; but this 
circumstance does not affect, nor can it affect, the geographi- 
cal limit fixed by the treaty, which is perfectly clear and vis- 
ible, as said before, and is not movable like the waters. 

The point, or cape, named in the treaty of 1858 " Punta 
de Castilla," is, and has to be, the end of the line on the 
Atlantic side because the treaty says so ; that " Punta de 
Castilla " is not, nor has it ever been, at the mouth of the 



144 

Colorado river, nor at the mouth of the Taura stream, nor at 
any bank of the " Cano de Animas," nor at any other place 
which Nicaragua may now be pleased to call the mouth of 
the San Juan river ; but at the right bank of the mouth 
that the San Juan river had on the 15th of April, 1858, when 
the treaty of limits was concluded. 

Supposing, gracia arguendi, that the Colorado river, the 
mouth of the Taura river, and the " Cano de Animas " were 
not, as they are, geographical entities different from the San 
Juan river, existing, and recognized to exist, when the treaty 
was made ; and, also, that the old bed of the San Juan river 
was left dry, and that the whole mass of the waters of that 
river flowed into the bed of the Colorado river, or emptied 
either through the mouths above named, or through some 
others unknown — even in that case it would be plain that 
" Punta de Castilla," the point, or cape, which existed in 
1858, and the ancient bed of the San Juan river, the bed 
through which it flowed in 1858, shall continue to be the 
border line between the two nations. 

International law does not allow any doubt upon this 
subject. 

In 1856, Mr. Caleb Cushing, Attorney-General of the United 
States, was called to give his authorized opinion in regard 
to it. 

A portion of the frontier between the United States and 
Mexico is marked by the Rio Grande or Bravo river, which 
is subject to frequent changes in its course, and often leaves 
its bed to empty into the Gulf of Mexico through other outlets. 
The opinion of Mr. Cushing was asked, on November 11, 1858, 
on the question, whether the border line between both coun- 
tries changes together with the river, or whether it is sta- 
tionary, and constantly remains at the place where the bed 
of the river originally stood, even if it is dry. 

The answer of Mr. Cushing, which can be consulted on 
page 175 and the following, of Volume YIII of the Opinions 
of the Attorneys-General of the United States, is a complete. 



145 

conscientious, and reall}^ masterly work. The doctrine ex- 
plained by liim was accepted and endorsed by the Govern- 
ment of the United States, and it is held to be an authority 
on the subject, in Vol. I of the Digest of the International 
Law of the United States of Dr. Wharton, Chapter II, § 30, 
page 96. 

Mr. Gushing says : 

" If, deserting its original bed, the river forces for itself a 
new channel in another direction, * * * tjjj, boundary 

REMAINS IN THE MIDDLE OF THE DESERTED RIVER BED. For, in 

truth, just as a stone pillar constitutes a boundary, not be- 
cause it IS a stone, but because of the place in which it stands, 
so a river is made the limit of nations, not because it is run- 
ning water bearing a certain geographical name, but because 
it is water flowing in a given channel and within given 

BANKS, which ARE THE REAL INTERNATIONAL BOUNDARY." 

" Such is," Mr. Gushing says further, " the received rule of 
the law of nations on this point as laid down by all the 
writers of authority." (See ex. gr. Puffend., Jus Nat., Lib. lY, 
cap. 7, sec. II ; Gundling, Jus Nat., p. 248 ; Wolff, Jus Gen- 
tium, s. 106-109 ; Vattel, Droit des Gens., Liv. I, chap. 22, 
s. 268, 270 ; Stypmanni, Jus Marit., Cap. V, n. 476-552 ; 
Eayneval, Droit de la Nature, Tom. I, p. 307 ; Merlin, Re- 
pertoire, ss. voc. alluv.) 

" I might multiply citations to this point from the books of 
public law. But in order that either the United States or 
the Mexican Republic, whichever in the lapse of time shall 
happen to be inconveniently affected by the application of 
this rule, may be fully reconciled thereto, it seems well to 
show that it is conformable to the common law of both coun- 
tries." 

To prove that this is the law of Mexico, and of the coun- 
tries of Spanish origin, Mr. Cushing quotes from Riquelme, 
Don Andres Bello and Don Jose Maria de Pando, as well as 
from the " Derecho Publico " by Almeda. 

" Don Antonio Riquelme," he says, " states the doctrine as 
follows : 
10 



146 

" When a river changes its course, directing its currents 
through the territory of one of the two coterminous States, 

THE BED WHICH IT LEAVES DRY REMAINS * * « EETAINED AS 

THE LIMIT BETWEEN THE TWO NATIONS ; and the rivcr enters 
so far into the exclusive dominion of the nation through 
whose territory it takes the new course." (Derecho Inter- 
nacional, voL I, p. 83). 

" Don Andres Bello and Don Jos^ Maria de Pando," Mr. 
Gushing continues, " both enunciate the doctrine in exactly 
the same words, namely : 

" When a river or lake divides two territories * * * 
the rights which either has in the lake or river do not un- 
dergo any change by reason of alluvion. * * * jf^ \yj 
any natural accident, the water which separated the two States 
enters of a sudden into the territory of the other ^ it will thence- 
forth belong to the State whose soil it occupies, and the land, 
including the abandoned river channel or hed, will incur no 
change of master.'''' (Bello, Derecho Internacional, p. 38 ; 
Pando, Derecho Internacional, p. 99). 

Mr. Gushing quotes, furthermore, copiously from the Roman 
civil law, from the civil law of Spain, from that of Mexico, 
and from the laws in force in England and in the United 
States ; and especially in regard to the latter from Bracton 
de Legg. Anglise, from Blackstone's Gommentaries, from 
Woolrych, and from Angel on Water-courses. 

In addition to the opinion of Mr. Gushing, many others 
can be cited whose authority it is impossible to deny. 

Sir Traver Twiss, Gounsel for the Grown in the Great 
British Empire and Begins Professor of International Law 
in the University of Oxford, maintains the same doctrine, 
and supports it on the authority of Grotius and Martens. ^ 

Grotius says : 

" A river that separates two empires is not to be consid- 
ered barely as water, hut as water confined within such and such 



'The Law of Nations. Oxford, 1861, page 208. 



147 

/xm/i'd!, and ruiining in such and such a channel ; therefore, the 
addition, subtraction, or such changes of its particles as allow 
the Avhole to subsist in its ancient form, allows the river to 
bo considered as the same. ^' * * If ariver shoxdd have 
hecome dried up, the middle of the channel would remain as 
hefore, the houndary of empire hetween two nations."" 

Martens, in his "Precis du Droit des Gens," says : 

" In case that a river should change completely its bed, 
the bed dried up would remain, dividing the two nations as 
the river divided them before." ^ 

Calvo, in his famous " Traits du Droit international th6- 
orique et pratique," expresses himself as follows : 

" When a river has opened for itself a new bed or channel 
through the neighboring lands, or when a lake has opened 
new outlets or divides itself into several branches, the politi- 
cal frontier of the bordering states does not remain for that 
less fixed or estahlished in the same places in which it was he- 
fore""^ 

Bluntschli says : 

" When the river completely abandons its bed to flow in 
another direction, the ancient channel continues to he the divid- 
ing liney^ 

Woolsey, in his excellent " Introduction to the Study of 
the International Law," decides the question in the same 
way, and uses the following language : 

" Where a navigable river forms the boundary between 
two states, both are presumed to have free use of it, and the 
dividing line will run in the middle of the channel unless the 
contrary is shown by long occupancy or agreement of the 
parties. If a river changes its led, the line through the old 
channel contifives.'' ^ 

Halleck, in his " International Law," Chapter YI, § 25, 
says as follows : 



' Martens. Precis du Droit des Gens, § 39. 
^ Book IV, § 394. 

^Le Droit Internationel Codifi6, Art. 399. 
* Woolsey, § 62. 



148 

" Where the river abandons its ancient bed and forms a 
new channel, or where a lake leaves its former banks and 
forms a new lake or a series of new lakes, the boundaries of 
the states remain in the abandoned hed of the river or in the 
position formerly occupied hy the lake." 

And the American statesman who now presides over the 
Foreign Office of the United States, the Hon. Secretary of 
State, Mr. Bayard, has rested on these grounds, and main- 
tained in regard to the Rio Grande, or Bravo, river, which 
marks for a long space the Mexican boundary, the following 
doctrine : 

" It may be proper to add that it has been held in this 
Department that when, through the changing of the channel 
of the Rio Grande, the distance of an island in the river from 
the respective shores has been changed, the line adjusted by 
the Commissioners under the treaty is nevertheless to re- 
main as originally drawn." ^ 

(Mr. Bayard, Secretary of State, to Mr. Bowen, June 
12, 1885). 

It results from the above, that the first question propounded 
by Nicaragua ought to be answered, upon the authority of 
all writers on International Law, in the following way : The 
dividing line between Costa Rica and Nicaragua is the one 
marked by the treaty of 1858, and no other. This line starts 
from the cape, or point, named " Punta de Castilla," and runs 
along the right bank of the stream which at that date was 
known by the name of the San Juan river ; and this will be 
the case, even if that stream, whether trunk, or branch, or river, 
would abandon its course, and the whole of its waters would 
empty into the Atlantic through the channels of the Colorado 
river, or the Taura, or the " Cano de Animas," or any other 
whatsoever. 

Passing now to answer question No. 7, I have to say in 
the same way that the Colorado river can never be considered 



' Dr. Wharton's Digest, Vol. I, Chapter II, § 30, p. 95. 



149 

as the boundary, or frontier, between the two nations, un- 
less Article II of the treat}', which reads that said limit shall 
be the San Juan river, from Punta de Castilla up to a point 
three English miles distant from Castillo Viejo, is wholly 
Aviped out or ignored. The said limit, besides being specific- 
ally established by the treaty, is, as it has been shown, ac- 
cording to the principles of law, and the universal practice 
among nations, permanent and unchangeable, even in case 
that the San Juan river should lose, what has never hap- 
pened, nor probably will ever happen, the whole of its 
waters. 

This conclusion is not modified, but, on the contrary, 
strengthened and confirmed by the language of Art. V of the 
treaty, according to which, and only temporarily and tran- 
siently, as long as certain circumstances, which afterwards 
disappeared, should exist, Nicaragua had the right to enjoy, in 
common with Costa Rica, not the sovereignty, because this 
belongs to Costa Eica, but the use and possession of the delta. 

Article V of the treaty reads as follows : 

" As long as Nicaragua does not recover the full possession 
of all her rights in the port of San Juan del Norte, the point 
named Punta de Castilla shall be used and possessed entirely' 
and equally and in common by both Nicaragua and Costa 
Eica ; and the whole course of the Colorado river shall be 
the boundary as long as this community of use and posses- 
sion lasts. And it is further stipulated that as long as the 
said port of San Juan del Norte exists classified as free, 
Costa Eica shall not collect from Nicaragua port dues at 
Punta de Castilla." 

The course of the Colorado river was given as limit by 
Article Y of the treaty, only during the 2^Teca7nous possession 
allowed by Costa Eica to Nicaragua, and as long as Nicaragua 
should remain deprived of her port of San Juan del Norte, 
and by no means as a final and perpetual boundary between 
the two Eepublics, which was established by Article II of the 
treaty, when it was provided that it should run from Punta 



150 

de Castilla along the right bank of the San Juan river up 
to three miles from Castillo Yiejo. 

The special circumstances referred to in Article Y of the 
treaty of 1858 disappeared on the 28th of January, 1860, by 
the treaty concluded between Nicaragua and Great Britain, 
and is known by the name of the Zeledon-Wyke treaty. 
Nicaragua recovered under this treaty the sovereignty, use, 
possession, and enjoyment of the port of San Juan ; and, ever 
since, the precarious possession of the Costa Rican delta, 
allowed by Costa Rica to Nicaragua, ceased to exist in fact 
and in law. 

Article Y of the treaty has not at present any practical ap- 
plication, and only belongs to history. But even admitting 
that the special circumstances which gave birth to it are still 
in existence, and. that Nicaragua is not yet in full possession 
of the port of San Juan del Norte, and that her commerce is 
now, as it was in 1858, obstructed on the side of the Carib- 
bean Sea, the alleged doubt of Nicaragua should always 
be not only absurd and unjust, but even an attack on the 
rights of Costa Rica. The most that Nicaragua could ask 
under those circumstances would be the use and possession 
in common, but never the ownership, or sovereignty, or an 
extension of territory, or change of the frontier, against the 
plain language of Article II of the treaty of 1858, which says 
that the San Juan river, not the Colorado, shall be the bor- 
der line between the two Republics. 

This doubt No. 7 is one of those which render the spirit of 
Nicaragua in the present controversy perfectly patent. Costa 
Rica, by an act of most special favor or graciousness, granted 
Nicaragua the use of Punta de Castilla as long as she would 
remain deprived by Great Britain of her own port of San 
Juan del Norte. And now, seventeen years after she was 
restored to the possession of that port, she comes and founds 
upon that favor a claim to the ownership of what she herself 
declared not to belong to her. 

This question No. 7 is answered by itself. It carries with 
it the most emphatic negative. 



151 

As to the ninth question, that is, whether Nicaragua can 
change the course of the San Juan river, at any place be- 
tween its origin in the lake and its mouth on the Atlantic, 
and whether Costa Rica can reasonably deny her the right 
to deviate the waters of that river, the answer seems to be 
very obvious. 

It is to be remarked at the outset, that even if the said op- 
erations were permissible for Nicaragua, the location of the 
border Hne would not suffer thereby any change, because, as 
it has been shown, the said frontier would continue to be 
marked by the ancient bed, and would run, in the same way 
as before, along the right bank of the said bed, as stated in 
Art. II of the treaty of limits of 1858. But as the deviation 
of the waters, independently of all questions of limits, would 
cause Costa Rica to suffer considerable detriment and 
losses of all kinds, not owing to the unavoidable action of 
nature through physical causes beyond the control of man, 
but owing to the deliberate will of Nicaragua, the question 
whether Costa Rica has the right to oppose such a thing ap- 
pears to be almost inconceivable. 

Art. YI of the treaty of limits of 1858 recognizes, in favor 
of Costa Rica, the " perpetual right of navigation " in the 
waters of the San Juan river, between the point within three 
miles of Castillo Viejo and, the mouth of the river on the 
Atlantic Ocean ; and although it is true that it was also stip- 
ulated that Nicaragua should have the sovereignty and emi- 
nent domain over the waters of the said river, said sovereignty 
and eminent domain are to be understood with the restriction 
that the right of perpetual navigation of Costa Rica imposes 
upon them. Nicaragua has the power to do in the San Juan 
river, by virtue of sovereignty, all that she may be pleased 
to do, provided that she does not abridge or destroy, through 
her action, the rights acquired by Costa Rica. Otherwise, 
the said rights which Costa Rica secured by the treaty, not 
gratuitously, but in exchange of and in compensation for 
other rights, that it had prior to the treaty and gave up by it, 
would become illusory. 



152 

This doctrine is well settled in municipal law. The one 
who has the direct ownership of one thing cannot render the 
condition of this thing worse, or injure the position of the 
other party which has the right of possession. The rights of 
the ow.ner are limited by the rights of the cestuy que itse. 

In addition to this, and leaving aside all the former con- 
siderations, it will be easy to understand that when a country 
has for its boundary a water front as extensive as the Costa 
Rican bank of the San Juan river is, innumerable and con- 
siderable and legitimate interests of all kinds must necessa- 
rily have been created in the neighborhood of that stream, 
which it is indispensable to respect. 

The vast and fertile northern territories of Costa Rica are 
now to a great extent owned and occupied by private parties, 
who, in acquiring them, had very specially in view their 
location near a navigable river, or adjoining to it, or to its 
affluents, and the propinquity to the place through which 
some day the interoceanic canal shall pass. Let it be said, 
therefore, if the waters referred to, such as they are at pres- 
ent, and as now kept by the hand of God, are, or are not, 
necessary for Costa Rica. 

That necessity cannot be evaded or left unsatisfied only 
because Nicaragua may deem it advisable for her, whether in 
use or in abuse of her sovereignty, to force those waters into 
different channels. 

If the deviation were due to natural causes, then it would 
be necessary for all parties concerned to submit to the loss 
sustained if the remedy was impossible ; but, it being the act 
of the free and deliberate will of the neighboring nation, it 
would admit of but one construction, consisting in looking at 
that act as one of extreme hostility. 

"Woolsey, in his Introduction to the Study of International 
Law above quoted, clearly explains (§ 62) that such a devia- 
tion would be illegal, and that it cannot be recognized by law. 
The same doctrine is held by many other writers upon this 
subject, from whom I do not quote, not to give too much 
length to this argument. 



153 

In tlie ITiiited States, perhaps more than in any other 
eountrj, bv virtue of the blessing bestowed by Heaven upon 
them, among many others, of having so many and such co- 
pious rivers, and of the circumstance that many of them 
mark, as the San Juan river does between Costa Rica and 
Nicaragua, the dividing Hue between their several States, 
the matter now discussed has been studied carefully and 
settled justly, through an uninterrupted current of legal de- 
cisions. 

It would be sufficient to cast a rapid glance at the stand- 
ard work written by Angel, under the title of " A Treatise on 
the Law of Water-courses,'" to find there most abundant 
precedents in support of the doctrine which I maintain in 
this argument. 

In Chapter IV, Sec. 2, of that book, devoted to the study 
of " the damage done by voluntary deviation " of the waters, 
innumerable decisions will be found rendered by the courts of 
Illinois, Connecticut, New York, Maine, Massachusetts, New 
Hampshire, &c., &c., all of them recognizing the legal prin- 
ciple, " sic utere tuo ut alientmi iion ledas,'' and subjecting to 
responsibility those who, for their own profit and to the det- 
riment of others, divert from its ordinary channel the waters 
of a river. 

In Chapter XI of the same book, devoted to the study of 
the eminent domain or sovereign rights of a nation in their 
relations with this particular subject of deviation of the waters 
and change of their distribution, the same legal doctrine is 
held to rule supremely, and is fully Adndicated. 

Among the great number of cases and authorities therein 
referred to, the one which relates to the Blackstone river, 
which divides the States of Rhode Island and Massachusetts, 
and the course of which had been changed, or ordered to be 
changed, by a law enacted by the Legislature of Rhode Island, 
to the detriment of existing rights and interests of Massa- 
chusetts, is particularly applicable to the point now under 
consideration. It was decided, in that case, that the State of 



154: 

Eihode Island, or its Legislature, had no power to do sucli a 
thing. ^ 

But the best proof which can be given of the fact that the 
doctrine herein held by me is the only legitimate and correct 
one will be found in the explicit sanction which Nicaragua 
herself has given to it. 

By Article YIII of the treaty of limits of 1858 it was stipu- 
lated that, before entering into any contract of canalization 
or transit, Costa Rica should be consulted ; and the reason 
of this provision was, as plainly stated in Article VIII, be- 
cause of the " disadvantages that the transaction might pro- 
duce " for Costa Rica. This was proper and just, as, also, 
was the stipulation that the opinion of Costa Rica should 
not be merely advisory and consultative, but an actual vote, 
when the disadvantages alluded to were such as " to injure " 
the natural rights of Costa Rica. 

Natural rights, disadvantages, injury, necessity of consul- 
tation, the right of veto, if such can be said, have been ac- 
knowledged ; and all of this means that Costa Rica has a 
perfect and indisputable right to oppose the deviation of the 
course of the San Juan river. 

If Costa Rica has this right when the work to be done re- 
fers exclusively to canalization and transit, how can it be 
denied when the work to be done is the radical one of carry- 
ing the river elsewhere, and depriving Costa Rica of the 
long river front which she now enjoys ? 



'Angel on Water-Courses, chap, xii, p. 507. 



Chatter II. 

WHETHER MEN-OF-WAK OR REVENUE CUTTERS OF COSTA RICA CAN NAVIGATE 
ON THE SAN JUAN RIVER. 

By the necessity of system, and following the plan initiated, 
I must now pass to occupy myself with question No. 8, pro- 
pounded by Nicaragua. 

This question reads as follows : 

''Eight. 

" If Costa Rica, who, according to Article VI of the treaty, 
has only the right of free navigation for the purposes of com- 
merce in the waters of the San Juan river, can also navigate 
with men-of-war or revenue cutters in the same waters ? " 

In order that the language be precise, and that the mean- 
ing of the compact should not be modified by the introduc- 
tion of a word, I must begin by calling the attention of the 
arbitrator to the fact that the word only which occurs in the 
question does not occur in Article VI of the treaty of limits. 

That article simply reads in this way : 

" But the Republic of Costa Rica shall have in the said 
waters the perpetual rights of navigation, from the above 
said mouth up to a point three English miles distant from 
Castillo Viejo, for the purposes of commerce, either with Nic- 
aragua or with the interior of Costa Rica," &c. 

Does this mean that Costa Rica cannot under any circum- 
stances navigate with public vessels in the said waters, 
whether the said vessel is properly a man-of-war, or simply 
a revenue cutter, or any other vessel intended to prevent 
smuggling, or to carry orders to the authorities of the border- 
ing districts, or for any other purpose not exactly within the 
meaning of transportation of merchandise ? 

The answer seems to be very simple, especially when the 



156 

fact is taken into consideration that, under no circumstances 
whatever, even in case of war, acts of hostility can be done 
by either of the two Repubhcs against the other in the 
waters of the river, or of the Lake of Nicaragua, or the Bay 
of San Juan. 

It seems to be beyond discussion that Costa Rica can navi- 
gate in the San Juan river with pubhc vessels, which are not 
properly men-of-war. 

It was stipulated in the treaty, to the benefit of Nicaragua, 
that Nicaraguan vessels could bring their cargoes to the 
Costa Rican bank of the river and unload them there ; and 
this permission, or right, presupposes, necessarily, the cor- 
relative right of Costa Rica to watch its own banks by the 
only practicable means, which is the revenue police, during 
the whole course of the river navigable for Costa Rica. 

If this only means of vigilance would not be permitted, the 
Costa Rican commerce would be deprived of protection and 
at the mercy of smuggling. 

Within the meaning of the words, commercial navigation, 
both the revenue police, the carrying of the mails, and all 
other public services of the same kind are necessarily in- 
cluded. 

In regard to men-of-war, there is no reason why they can- 
not be admitted upon the waters of the San Juan river. 

Carlos Calvo, in his work already cited. Book lY, § 230, 
says the following ; * * * " In principle, a port of free 
entry is considered tacitly as one accessible to the men-of- 
war of all nations, and, unless stipulated to the contrary, the 
free access granted to all merchant vessels is extended to war 
vessels of the friendly nations. This is a point upon which 
all writers of public law fully agree." 

By analogy, this doctrine can be perfectly well applied to 
the navigable rivers ; and if all the friendly nations have the 
right to navigate with men-of-war in the large rivers, why 
can the right of Costa Rica to do the same thing on the San 
Juan river be disputed by Nicaragua, who is separated from 



157 

her ouly by the river ? How can that right be disputed 
when the fact is taken into consideration that before the 
treaty of 1858 Costa Rica was co-owner of the San Juan 
river, and that by the treaty itself Costa Rica reserved for 
herself the perpetual right of navigation in the same river, 
and that, in fine, the compact does not read that Costa Rica 
has the said right of navigation only for purposes of com- 
merce, and for no other ? 

And if the limitation of the rights of Costa Rica is to 
be derived from the alleged fact that the treaty only men- 
tions commercial purposes, such an argument could be met 
at once with the assertion that the maxim, qni dicit de 
lino negat de altero^ is only applicable when the thing affirmed 
excludes the other, which does not happen in this case. 

Even in those very rare instances in which the navigation 
with vessels of war is forbidden, as it happens in the Darda- 
nelles, the prohibition has not been made except by specia 
convention, in the absence of which it would be difficult for 
the Porte to close the Dardanelles or the Bosphorus against 
vessels of war. 

Something similar to this happens in the Black Sea. By 
the treaty of Paris, of March 30, 1856, the neutrality of the 
Black Sea was declared exactly in the same way as the neu- 
trality of the San Juan river, the port of San Juan, and the 
Lake of Nicaragua, as far at least as Nicaragua and Costa 
Rica are respectively concerned, was declared by the treaty 
of San Jos^, of April 15, 1858. It was also declared in 
the former treaty that the Black Sea was open to the com- 
merce of the world, and so are also the waters of the river, 
port, and lake above mentioned, at least for the two Re- 
publics. 

The treaty of Paris forbade " formally and perpetually that 
vessels of war, whether of the bordering nations, or of any 
other whatsoever, should navigate in the Black Sea," But 
soon the necessity was recognized of establishing there some 
force to do the shore service ; and the same treaty provided 



158 

the manner in whioh Russia and Turkey should enter into 
some agreement in regard to this point. 

As it is known, there are now in those waters a certain 
number of steamers of no more than 800 tons burden, and 
some saihng vessels of certain dimensions agreed upon by 
both parties ; but all of them men-of-war and belonging to 
the two nations. 1 

As remarked by Dr. Wharton, in his Digest, in reference to 
the work of Fauchille (Blocus Maritime, Paris, 1882), one 
thing is the neutrality of certain waters, and the prohibition 
for the nations who so stipulated it to commit hostilities 
against each other in the said waters, and another, and a very 
different thing, is to navigate in those waters with vessels of 
war. 

So it is that Costa Rica and Nicaragua cannot wage war 
against each other in the San Juan river, but, nevertheless, 
they can navigate with men-of-war in the waters thereof. 

And certainly Nicaragua is, perhaps, the nation who has 
proclaimed most loudly the distinction above referred to. 
She has concluded several treaties with different European 
nations, and has stipulated in them that the waters of the 
interoceanic canal, the waters of the San Juan river being 
included in them (if the canal is ever built) shall be neutral ; 
but, nevertheless, she has permitted the said nations to navi- 
gate the said canal with vessels of war, and to station there 
armed forces for the purpose of protecting commerce and 
the interests of the foreign citizens or subjects of the con- 
tracting nations which might be in danger. 

So it was stipulated with France, by Article IX of the 
treaty of the 11th of April, 1859 ; with Great Britain, in Arti- 
cle XXII of the treaty of February 11, 1860 ; and with the 
United States of America, by Article XXI of the treaty of 
June 21, 1867. 



' Woolsey, § 61. 

Dr. Wharton's Digest, chap, ii, § 40, p. 169. 



159 

Costa Eica iiiiglit claim the same privilege granted to tlie 
three above-named nations, because, under Article IV of the 
treaty of August 14, 1868, between Nicaragua and Costa 
Rica, it was provided that everything granted to any nation 
whatsoever by either contracting party must be at once un- 
derstood to be common to the other. This stipulation would 
give Costa Rica the right to place on the waters of the San 
Juan river, in the event foreseen, and for the purposes had 
in view by these treaties, all kinds of men-of-war. 

But there is, after all, a fundamental consideration which is 
perplexing, not, certainly, on account of the decision to be 
given to the point in question, but owing to the difficulty of 
understanding how the Government of Nicaragua could ever 
consider this point of the treaty of limits of 1858 to be 
doubtful and admit of different interpretations. 

All that I have said in this portion of my work in explana- 
tion of the facts and law which relate to the. subject might 
be erroneous, badly brought, irrelevant, and absolutely inad- 
missible on general principles, and, nevertheless, it would be 
true that Costa Rica can navigate with men-of-war and other 
Government vessels on the waters of the San Juan river. It 
is Nicaragua herself who has solemnly granted that right by 
an article of that very same treaty which she alleges to be 
doubtful or capable of different interpretation. 

" Costa Rica shall also be bound," says the second part of 
Article IV of the treaty, " owing to the portion of the right 
bank of the San Juan river, which belongs to it, * * * 
to co-operate in its custody ; and the two Republics shall 
equally concur in its defence in case of foreign aggressions ; 
and this will be done by them with all the efficiency that may 
be within their reach." 

It can be seen by these phrases, as plainly and transpar- 
ently as they can be, that Costa Rica has not only the right 
but the duty, or to follow exactly the language of the treaty, 
the " obligation," not only of watching, guarding, and de- 
fending its own river bank, but of contributing to the custody 
and defence of the other bank belonging to Nicaragua. 



160 

If that duty sliould not be complied with with all the effi- 
ciency within the reach of Costa Eica, the latter nation would 
violate an obligation contracted in a solemn treaty, and Nic- 
aragua might prefer against Costa Eica a well-grounded 
charge. And if this is the case, how can it be possible for 
Nicaragua to suppose that Costa Eica has no authority to 
navigate in the said river with Government vessels to be used 
in the police service of the locality, and in the custody of the 
two banks, and with regular men-of-war to be used in the de- 
fence, as efficient as possible, of the same banks in case of 
foreign aggressions ? 

No one can accomplish a purpose, unless he has the means 
to do it ; and it would be against logic and reason to impose 
upon, either a man or a government, the duty of guarding 
and defending a place, and at the same time deprive the one 
or the other of the right of arming or preparing themselves 
for resisting in the proper manner the aggression foreseen. 

" The right to a thing," says Wheaton, " gives also the 
right to the means without which that thing cannot be used." 
(Part III, chap. IV, § 18). " This is founded on natural rea- 
son, is accredited by the common opinion of mankind, and is 
declared by the writers." 

Let it not be said that the authority to navigate with 
men-of-war is only confined to the special case of foreign 
aggression. The treaty does not refer to this case exclusively, 
but speaks also of guard or custody, which means watching, 
vigilance, and other things of permanent character and nec- 
essarily previous to actual defence. This, especially in a river, 
cannot be improvised at the very same instant that trouble 
arises ; since, in order that it may be possible and efficient, a 
perfect knowledge of the locality, which cannot be acquired 
except by navigating the same river, is absolutely indispen- 
sable. 

Much more so when it is well known that the navigation 
of the San Juan river encounters many obstacles, not only 
on account of its'shaUowness at certain places, but also owing 



161 

to its rapids and other dangers. The defence of a river of 
this kind, without practical knowledge of all its peculiarities, 
rather than defence would be a sure surrender to the enemy 
of the elements brought into action to oppose it. 

Let it not he claimed either that Costa Rica is reiieved 
from the duty assumed by her of guarding and defending the 
river, nor that such duty has ceased or been abridged through 
the fact that Nicaragua denies to her the right to navigate 
said river with men-of-war ; because the navigation of the 
San Juan river, which is the boundary between Costa Rica 
and Nicaragua, and is a boundary open and accessible to 
invasions by all kinds of enemies, was mentioned in the 
treaty, not simply for the benefit of Nicaragua, and as an ob- 
ligation on the part of Costa Rica, but because it involves 
also a sacred right of the most vital importance for its safety 
and preservation. 
11 



Chapter III. 

"WHETHER COSTA BICA IS BOUND TO CO-OPEKATE IN THE PEESEEVATION 
AND IMPROVEMENT OF THE SAN JUAN RIVER AND THE BAY OF SAN JTJAN, 
AND IN WHAT MANNER ; AND WHETHER NICARAGUA CAN UNDERTAKE ANY 
WORK WITHOUT CONSIDERING THE INJURY WHICH MAY RESULT TO COSTA 
RICA. 

A NEW group' of questions comes now, consisting of those 
which in the list of Nicaragua are marked Nos. 4, 5 and 6, 
and read as follows : 

" 4. Nicaragua consented, by Article IV, that the Bay of 
San Juan, which always exclusively belonged to her and over 
which she exercised exclusive jurisdiction, should be common 
to both Republics ; and by Article VI she consented, also, 
that Costa Rica should have, in the waters of the river, from 
its mouth on the Atlantic up to three English miles before 
reaching Castillo Viejo, the perpetual right of free navigation 
for purposes of commerce. Is Costa Rica bound to concur 
with Nicaragua in the expense necessary to prevent the Bay 
from being obstructed, to keep the navigation of the river 
and port free and unembarrassed, and to improve it for the 
common benefit ? If so — 

" 5. In what proportion must Costa Rica contribute ? In 
case she has to contribute nothing — 

" 6. Can Costa Rica prevent Nicaragua from executing, at 
her own expense, the works of improvement ? Or, shall she 
have any right to demand indemnification for the places be- 
longing to her on the right bank, which may be necessary to 
occupy, or for the lands on the same bank which may be 
flooded or damaged in any other way in consequence of the 
said works ?" 

Denying the historical truth of the statements made in 
the preamble of question No. 4, and the first of this group, 



163 

and referring to those chapters of the first part of this argu- 
ment, Avherein I showed that Costa Eica had eminent domain 
and sovereignty on the waters of the San Juan river pre- 
vious to the treaty of 1858, and taking only into considera- 
tion tlie particular point of the inquiry, I think that it is 
necessar}' before all to distinguish carefully what the treaty 
itself has taken pains to distingiiish. 

The right of Costa Rica on the Bay of San Juan is a right 
of sovereignty which she exercises jointly and in common 
with Nicaragua ; and the right of Costa Rica in the San Juan 
river, from the mouth thereof on the Atlantic, to the point 
three miles from Castillo Viejo,- which has been fixed, is the 
riglit of use and navigation. In the former case Costa Rica 
is joint owner ; in the latter, Costa Rica is simply the cestuy 
que use ; it being expressly stipulated by Article YI that the 
Republic of Nicaragua shall have exclusively the eminent 
domain and sovereignty over the waters of the San Juan river 
from its rise in the lake to its mouth on the Atlantic. 

It is, therefore, plain that the answer to be given to the 
interrogatories of Nicaragua depends entirely upon the legal 
status in which Costa Rica finds herself, of joint owner in 
the one case, and of cestuy que use in the other. 

It might be remarked with justice that the three questions 
of this group should be thoroughly eliminated from the pres- 
ent discussion because this refers only to those points of the 
treaty of 1858 which Nicaragua considers to be doubtful 
and upon which she desires to secure the authoritative and 
enlightened decision of the Arbitrator, while the points in- 
volved in those questions have nothing to do directly with 
the treaty of limits, nor are they doubtful, nor can they be 
considered other than pure effects of casuistry, the solution 
of which in reality should not be given beforehand. 

It is plain, however, and so it is stated in the present an- 
swer in order that it may never be said that Costa Rica has 
evaded to make any reply, that if the sovereign rights which 
belong to Nicaragua over the San Juan river terminate on 



164 

the right bank thereof, which is the Costa Rican, and that if 
her rights on the river itself are limited to the perpetual use 
or navigation, and to the other riparian rights acknowledged 
by law, the duty to keep the navigation of the said river free 
and unembarrassed, and of contributing to the expenses for 
that purpose incurred, is not, nor can it be, incumbent upon 
her. • 

It seems to be in the natural order of things that the obli- 
gation to make repairs and to keep the property in the con- 
dition in which it was when the use and possession thereof 
was granted to another party, and the duty to pay the ex- 
penses incurred thereby, should belong to the owner. 

The Roman civil law, which in the matter of rivers has 
been generally adopted by all nations, as remarked by Hal- 
leck^ and declared by Wheaton, who quotes the precedent 
established by Mr. Jefferson in his Instriiction to the United 
States Minister in Spain, of March 18, 1792, settled this ques- 
tion finally 2 and explicitly. 

The Jus utendi does not involve the obligation to pay ex- 
penses for the preservation of the thing used, nor any other 
expenses alluded to in questions Nos. 4 and 5. 

And the right of free navigation on a river which belongs 
to another power does not imply either in any way what- 
ever, no matter how remote, the obligation to pay the ex- 
penses which the owner of the said river may be pleased to 
incur for its preservation and improvement. 

Easements are rights which men have over things belong- 
ing to others ; they are burdens weighing upon these things, 
whether by the will of the parties, or by the force of circum- 
stances, and certainly it would be to disturb the order of law 
to demand from the possessor of the easement that he should 
assist the owner in paying the expenses required in the 
preservation and improvement of the property. 



1 Chapter VI, § 37. 

' Wheaton, by Lawrence. Part II, Chap. IV, § 18. 



165 

Nothing would be easier than multiplying quotations 
from the Pandects, and from the Institutes of Justinian, in 
support of this doctrine, Avhich is truly universal because 
of its wisdom and truth ; and there is no nation in the 
civilized world that has not embodied it in its laws. 

In Central America, as in England and the United States 
and everywhere else, the obligations which refer to the 
ownership are incumbent upon the owner ; and the cestay 
q}te use, or the possessor of any easement whatsoever, is not 
called to share those burdens unless by agreement especially 
entered into by him. 

The civil law of Spain, which, until very recently, consti- 
tuted the fundamental basis of the Nicaraguan law, as well as 
that of Costa Rica, has expressly declared this principle. 

" But the one who has only the right of use over a thing," 
says King Don Alfonso the Wise, " as was stated in the pre- 
ceding law, is not bound to do any of the aforesaid things in 
the property over which he has that use.''^ 

Those things before said are, as it can be seen by perus- 
ing the said law, " to guard, preserve, repair, and improve " 
the property. 

If the interpretation of the legal precept were different, 
the most lamentable confusion of things fundamentally dif- 
ferent by their own nature, as are the rights of ownership 
and use, would take place. The former represents the pleni- 
tude of power, while the latter only represents restrictions 
or emanations thereof. 

In reference to the Bay of San Juan, over which the rights 
of Costa Rica are sovereign, it seems to be unnecessary to 
state that the limitation or abridgment of the said rights 
cannot take place, whether directly or indirectly, except by 
an act of the will of Costa Rica, and with her consent. 

The history of bordering nations, joint sovereigns of 
streams,' straits, and bays, presents numerous cases fixing 



'Law XXII, Title 31, Partida III. 



166 

the rule to be observed when some work is to be clone or 
certain measures to be taken for the preservation or improve- 
ment thereof. 

What has been done in those cases was always done by 
the wdll of interested parties, by means of treaties, and spec- 
ially having in sight the concrete fact, the project of the work 
or improvement, its plans, the estimate of its expense, and 
everything else necessary to give a complete idea of the sub- 
ject under consideration. It is in this way, and in no other, 
that both Costa Eica and Nicaragua have to act in regard to 
the Bay of San Juan ; and Costa Eica has to reserve for it- 
self its freedom of action until seeing practically and con- 
cretely what is intended to be done to improve that Bay and 
prevent it from being obstructed, and before that she cannot 
bind herself or contract engagements for the future, upon 
mere general propositions, or academical themes, more prop- 
erly to be discussed in the law school than in an international 
arbitration. 

If, in the opinion of both Eepublics, some work is to be 
done, and the particulars of the work are given in such a 
way as is proper for all public works, then it is through an 
agreement or a formal treaty, concluded in accordance with 
the respective Constitutions of the two countries, that the 
said work must be undertaken and carried into effect. The 
mutual interests of the two parties would be sufficient to 
facilitate the enterprise. 

On the other hand, Nicaragua and Costa Eica find them- 
selves in regard to this point exactly in the same position. 
Both are joint owners of the Bay, and either of them, when 
considering it necessary for their mutual interests to under- 
take a work for preservation or improvement, must submit 
the project to the other. 

If the scientific studies required for the work, made by 
agreement of both parties, lead to a decision in favor of the 
advisability or necessity of the said work, the latter could 
be undertaken either at the expense of the two parties, in 



167 

eqiial proportion, if both of tliefn were benefited thereb}^ 
equally and witliont delay, or on account of wliicliever party 
was in need of it, subject to indemnification by tlie other 
party wheneyer it should be willing to avail itself of the im- 
provement. Such is the doctrine of equit}'', and the one 
which universally rules in matters of joint ownership. 

Referring now to Interrogatory No. 6, I shall state posi- 
tively that Costa Rica has the right to prevent Nicaragua 
from executing, at her own cost, the works to which she al- 
ludes, whenever undertaken without consideration of the 
rights which belong to Costa Rica, whether as cestuy que use 
of the river, or as joint owner of the Bay, or exclusive sov- 
ereign of the right bank of the San Juan river, and of the 
whole of the Colorado river, or of the other lands and waters 
of her territory. 

Costa Rica can, therefore, prevent any place on the river 
bank which belongs to her from being occupied. And to pre- 
vent one thing from being done is something more than asking 
indemnification for the occupation and for the damages done 
in consequence thereof, whether through the flooding of the 
lands, or by destruction of the river front, or for any other 
reason. 

Nicaragua cannot do any work either on the river or bay, 
whether for the improvement or for the preservation of the 
same, without first giving notice to Costa Rica and obtaining 
her consent. And as Costa Rica has the perpetual right of 
free navigation in the river, everything which may endanger 
or injure or modify or abridge that right is to be considered 
as an attack upon her property. Sic utere tuum ut alieivuni 
non ledas Costa Rica will always say and repeat to her sister 
and neighbor, Nicaragua. " Do not touch the river which is 
of common possession, nor the Bay over which the two par- 
ties are sovereign, without previous deliberation and agree- 
ment upon the full knowledge of the nature of the work to 
be accomplished." 

In regard to the occupation of any part of the Costa Rican 



168 

territory, because it may be deemed necessary for the work 
of improvement, scarcely can it be understood how the idea 
that such a thing is possible has occurred to any mind. It 
is true that a sovereign can, by virtue of his eminent domain, 
appropriate for public use and for reason of public utility, 
within his own dominions, and subject to indemnify the 
owners, such property as may be required. But when or 
where has the doctrine been establised that such a power can 
be exercised extra-territorially ? 

Who gives authority to a sovereign, no matter how absolute 
he may be within his own dominions, to appropriate for pub- 
lic use any property situated within the limits of the neigh- 
boring sovereign ? 

The limit of the jurisdiction of Nicaragua is fixed by the 
line which runs along the right bank of the San Juan river, 
and from there to the interior of Costa Rica the land is in- 
violable for Nicaragua. 

If, in consequence of some work surreptitiously done on the 
river or port, without the consent of Costa Rica, it should 
happen that some lands become inundated, whether abso- 
lutely or temporarily, or that the river-bed becomes dry and 
Costa Rica is deprived of her river front, the right of Costa 
Rica to demand the restoration of everything to the same 
condition in which it was before, and, furthermore, the proper 
indemnification for damages, does not admit of contradiction. 



Chaptee ly. 

WHICH IS THE CENTRE OF THE SALINAS BAY? — IS COSTA RICA A PARTY TO 
THE GRANTS OF INTEROCEANIC CANAL WHICH NICARAGUA MIGHT MAKE ? 
WHAT ARE. IN THIS RESPECT, THE RIGHTS OF COSTA RICA ? 

The fourth group of questions, or doubtful points, pro- 
pounded by Nicaragua embraces the interrogatories marked 
Nos. 2 and 3. 

They read as follows : 

" 2. How shall the central point of the Salinas Bay, w^hicli 
is the other end of the dividing line, be fixed ? 

" 3. Whether by that central point we are to understand 
the centre of the figure ; and, as it is necessary for its deter- 
mination to fix the limit of the Bay towards the ocean, what 
shall that limit be ? " 

True it is that Article II of the treaty of 1858 stipulates 
that the boundary towards the Pacific Ocean should be 
marked by drawing " an astronomical line " from the point 
therein named " to the central point of the Salinas Bay in the 
Southern Sea." But also it is true that nothing can be simpler 
than rightly construing these words. 

The central point of the Salinas Bay, which, like the Bay 
of San Juan, belongs to the two Republics jointly and in 
common, as far as domain and sovereignty are concerned 
(Art. lY), cannot be more than one, especially when it is to be 
fixed by merely drawing a line, and, much more, an astronom- 
ical or air -line, regardless of valleys, mountains, or any other 
obstacles of any kind. That centre, the only one possible, 
has to be the geometrical centre, the one in which all the 
lines dividing the Bay into two equal parts cross each other. 
The place where this happens shall be the extremity of the 
boundary between the two countries. 

This question, rather geographical and 'geometrical than of 



170 

international law, is extremely easy to decide. To determine 
the figure of the Bay there is no necessity to go beyond its 
limits and enter the ocean. It is enough to draw a line which, 
uniting the most protruding capes of its mouth, should, as it 
might be said, close it entirely ; and then nothing would be 
easier and simpler than finding the centre of the polygon, no 
matter how irregular, in this way obtained. 

And to do so, and do it well, no survey is now needed, be- 
cause the United States of America have just published an 
excellent map of the Salinas Bay which renders the opera- 
tion extremely simple. This map is the one published under 
the title, " Central America : West Coast of Nicaragua ; Sa- 
linas Bay ; from a survey in 1885 by the officers of the D. S. 
S. Ranger, Commander C. E. Clark, U. S. N., comdg." 

The two questions herein referred to can have only one 
answer, and that is that the astronomical line, spoken of by 
the treaty, shall end at the geometrical centre of the figure, that , 
is, at the point in which the greater and lesser axes cross each 
other ; and that the waters of the Bay, although divided into 
two equal parts by the astronomical line, and its prolonga- 
tion towards the ocean, are common to the two Republics. 

Now, it is time to refer to the last group of questions, which 
is the fifth, and embraces the tenth and eleventh interroga- 
tories of Nicaragua. The language of these questions is as 
follows : 

" 10. If considering that the reasons of the stipulation con- 
tained in Article VIII of the treaty have disappeared, does 
Nicaragua, nevertheless, remain bound not to make any grants 
for canal purposes across her territory without first asking 
the opinion of Costa Rica, as therein provided ? Which are, 
in this respect, the natural rights of Costa Rica alluded to 
by this stipulation, and in what cases must they be deemed 
injured ? 

" 11. Whether the treaty of April 15, 1858, gives Costa Rica 
any right to be a party to the grants of interoceanic canal 
which Nicaragua may make, or to share the profits that Nic- 



171 

aragua should reserve for herself as sovereign of the territory 
and waters, and in compensation of the valuable favors and 
privileges she may have conceded ? " 

"Whatever answer may be given to these questions must 
necessarily be prefaced by the statement that the stipulation 
contained in Article VIII of the treaty of limits does 
not explain the reasons, or causes, which induced the two 
nations to enter into it, of which the Goverment of Nicara- 
gua has spoken in the preamble which it was willing to 
make to this interrogatory, and which the said Government 
says to have now disappeared ; nor does it either allude to 
them even in the most indirect manner. 

Article YIII reads as follows : 

" Art. YIII. If the contracts of canalization, or transit, made 
by the Government of Nicaragua, before its having been given 
notice of the present agreement, should by any reason what- 
ever become invalidated, Nicaragua binds herself not to en- 
ter into any other contract for the aforesaid purposes with- 
out first hearing the opinion of the Government of Costa 
Bica as to the disadvantages that the transaction might pro- 
duce for the two countries, provided that the said opinion be 
given within thirty days after the receipt of the communica- 
tion asking for it, if Nicaragua stated that the decision was 
urgent ; and if the natural rights of Costa Rica are not in- 
jured, then the vote of Costa Rica shall be only advisory." 

In other words, if the contracts which were made before 
the treaty of limits of April 15, 1858, became law, were in 
in force, then Costa Rica would have to submit to the accom- 
plished fact, and respect in silence the stipulations made 
without its consent. But if for any reason whatever those 
contracts became invahdated, or inoperative, Nicaragua can- 
not enter into any new ones without first asking Costa Rica 
for its opinion, not only for the reason that its " natural rights " 
might be affected by the transaction, but also on account of 
the " disadvantages " which the transaction might produce for 
the two countries, that is, for Costa Rica and also Nicaragua. 



172 

And if it were urgently necessary that Costa Rica should give 
its opinion, then the opinion should be given within thirty 
days. 

The vote, or opinion, of Costa Rica should be simply ad- 
visory when referring to "disadvantages" common to both 
countries ; as, for instance, interests of race, language, religion, 
general commerce, &c.; but it will be "resolutive," that is to 
say, a real vote, as it must be necessarily, when referring to a 
"transaction " which does injury, or hurts, or alters, or modi- 
fies, or annuls, or ignores the natural rights of Costa Rica. 

Nothing is said in this article, nor in any others of the 
treaty, in regard to the causes which induced the two coun- 
tries to enter into the agreement. Nor can it be conjectured 
from the language of the agreement itself, that the circum- 
stances under which it was entered into were transient and 
capable of disappearing, and that they have now disappeared, 
as it is claimed. Should it be possible for me, in view of the 
absolute silence of Article VIII, to engage in such a discus- 
sion as this, I should set forth that the presumption is that 
the circumstances under which the treaty of 1858 was con- 
cluded were fundamentally the same as now exist. 

Why was it stipulated that Costa Rica should be heard 
before entering into any new grants of canal, or contracts of 
communication, or transit, and that its vote or opinion 
should be advisory when referring to the " disadvantages " 
that the transaction might produce for the two countries, 
and " resolutive," or a true vote, when referring to matters 
which might injure, or abridge, or ignore the " natural rights " 
of Costa Rica ? Was it not because the sovereignty over the 
Salinas Bay, and the Bay of San Juan, belongs to it jointly, 
or in common with Nicaragua, and because the right bank of 
the San Juan river belongs to it exclusively, and is Costa 
Rican territory ? Was it not because by virtue of these facts 
of permanent character, and of the perpetual right of use and 
navigation in the San Juan river, it was simply natural that 
nothing could be done capable of changing the status of all 
those things without first consulting the will of Costa Rica ? 



173 

The one who has dominion over a bay, although his 
sovereignty may not be exchisive, but in union with another 
sovereign, has the right of being heard and of interposing his 
veto in a matter upon which may depend the changing of the 
form of the bay, or the drying up of the same, or making it 
more accessible to a foreign enemy ; and such a right does 
not depend, nor can it depend, upon circumstances which 
exist to-da}' and disappear to-morrow. That right is the 
natural and legitimate result of complete dominion which 
constitutes sovereignty and does not need to be stipulated 
or explained. 

The same has to be said of the river banks which corre- 
spond to Costa Rica from the mouth of the San Juan river 
going up to within three miles of Castillo Viejo. In regard 
to whatever project of canalization or of transit which might 
affect the rights of exclusive sovereignty which Costa Rica 
has over that portion of the right bank of this river, which 
may involve the possibility of diminishing the amount of its 
waters or of throwing them upon Costa Rica, thereby flooding 
some locality, or which might make the defence of the Costa 
Rican territory and the same river more diJ0S.cult and burden- 
some, which Costa Rica is obliged to defend " with all the effi- 
ciency that might be within her reach," has necessarily and 
by virtue of the same nature of things to be consulted with 
Costa Rica. To act otherwise would simply be to invade the 
sovereign rights of that Republic. 

These antecedents being established, and remembering 
that the laws of interpretation of the treaties are the same to 
be observed in the interpretation of contracts between pri- 
vate parties, 1 from which it is clear that there is no neces- 
sity to search for another meaning than that which its own 
words legitimately reveal, and which the legal necessities 
already recommended confirm, it will be easy to answer the 
two questions. 



'Woolsey, §113. 



174 

To the first, which is the one marked No. 10, I shall say 
positively that Nicaragua is bound not to make any grants of 
canal through her territory without first securing the consent 
of Costa Eica, in the terms, and in the way, and for the pur- 
poses, provided for in Article YIII of the treaty of April 15, 
1858, and this not only because the said article is in force 
and has never been repealed or modified, but because, even 
in case that the said article should never have been written, 
the provisions thereof ought to be considered to be in exist- 
ence as emanating from the dictates of reason and law. In 
other words. Article YIII of the treaty has not created the 
rights of Costa Rica and the correlative duties of Nicaragua 
in this respect ; but the said rights and duties existed before- 
hand, and the treaty has done nothing else than express 
them. 

Now, and in regard to the additional question, " Which are, 
in this respect, the natural rights of Costa Eica, alluded to by 
this stipulation, and in what cases they must be deemed 
injured ? " I shall say, in the first place, that it is not rea- 
sonable to ask Costa Rica to formulate a complete catalogue 
of its natural rights in regard to this point, and to explain 
beforehand, through an almost prophetic effort of foresight, 
what are the circumstances through which those rights may 
be injured. And, in the second place, that those natural 
rights, and those circumstances capable to injure them, can 
be determined without difiiculty when the concrete case 
rendering the investigation necessary presents itself. 

It is well known that the natural rights of a man or nation, 
according to the excellent definition of Ahrens,^ are those 
which constitute an indispensable condition, depending upon 
the will of another man or Government for the preservation 
and development, whether material, moral, or intellectual, of 
the individual or nation to which they refer. 

That the river bank of Costa Rica remains such as it is ; that 



' PMlosophie du Droit, chap. i. 



175 

its statu quo is not disturbed in consequence of a work of 
canalization ; that Costa Eica does not become bounded by 
a dried up river-bed instead of a navigable river, or by a 
stream insignificant and without sufficient water for the pur- 
poses of navigation, commerce, and defence ; that by a work 
of this kind a portion of the Costa Rican territory does not be- 
come flooded, and that the industries already created thereon, 
or which might be created in the future, become ruined, 
and the rights of the riparian owners nullified or ignored ; 
that the " improvement " of the Bay of San Juan is not such 
as to injure the rights and interests of Costa Rica, and in- 
crease the burdens of its Government by rendering the duty 
of defending it, which the treaty imposes upon her, much 
more onerous or costly ; all of this constitutes a natural right, 
perfect, demandable, irrefutable ; and all tlu.t opposes the 
full satisfaction of that right, or renders that satisfaction 
more difficult, is and has to be considered as MTongful and 
invasive. 

When the practical case should present itself no one 
doubts, nor can it be doubted, that Costa Rica and Nicaragua 
mil agree with each other, since their rights are similar and 
substantially the same. 

The eleventh and last question is nothing more than a 
repetition of the immediately preceding one, to which a kind 
of preamble or antecedent has been attached. The answer 
to be given to it has to be the same. 

The Government of Nicaragua asks whether the treaty 
gives Costa Rica the right to be a party to the grants of in- 
teroceanic canal which that Government may make, and to 
share the profits which Nicaragua may reserve for herself as 
sovereign and in compensation of the valuable sacrifices 
made b}^ her. And the answer is that Costa Rica has indeed 
the right to be a party to the grants of canal made since 
1858, or which may be made in the future, and that, further- 
more, that right is affirmed and recognized by Nicaragua 
herself in Article YIII of the treaty of limits. 



176 

As to sharing the profits and determining whether those 
which Nicaragua inight reserve for herself are or are not, 
must or must not be, legitimate compensation for her sacri- 
fices, these are precisely the questions which, among others, 
necessarily require the intervention of Costa Rica, and ren- 
der the latter a legitimate party to the grants. 

The letter and the spirit of Article YIII clearly show that 
everything in regard to this point will depend upon the 
special circumstances of the case. If the grant is of such a 
nature as to demand sacrifices on the part of Costa Kica, 
whether because her sovereign rights are injured or because 
other rights of a different nature belonging to her may suffer 
detriment, could ever Nicaragua pretend that such sacrifices 
should be gratuitous ? Could she justly deny the right of 
Costa Rica to share the profits ? 

But this question is indeed premature. To resolve it 
properly, and even to avoid its coming up, the two Govern- 
ments wisely stipulated that Nicaragua should not enter into 
any agreement of this kind without first listening to Costa 
Rica. Let this article be complied with according to its letter 
and spirit, and no difficulty of any kind will ever arise. 



CONCLUSION. 



12 



CONCLUSION. 



I HERE put an end to this argument and omit a general re- 
capitulation, altliougli it miglit be of some use, for fear of 
fatiguing too much the enlightened and benevolent attention 
of the Arbitrator. 

The cause which I have defended is one of those which, 
on account of its notorious justice, needs no defence. 

It was only in consideration of that justice, I must say so 
once more ; it was only for the legitimate interest which 
Costa Kica has, and always had, in securing respect and in- 
violability for what has been covenanted, that she has main- 
tained with firmness the validity of the treaty of 1858. Not 
by any means because she believes that the said treaty is 
favorable to her. When Costa Rica adhered to that com- 
pact she knew perfectly well that her ancient rights on the 
San Juan river became reduced by it to those of simple use ; 
she understood without difficulty that, in moving away from 
the shores of the Great Lake, she also gave up her indisputa- 
ble rights of community in it as a bordering State ; and, 
therefore, she acted with the full knowledge that she was 
sacrificing her rights. 

But the Costa Eican people, being eminently peaceful and 
abhorrent of having differences with their neighbors, thought 
it better to accept that settlement than to keep open for a 
longer time the old question of limits with Nicaragua — a 
perennial source of trouble for both Republics. 

Exactly the same spirit now prevails in Costa Rica, and 
the very same reasons which induced her to act in 1858, 
cause her now to maintain the validity of the compact cele- 
brated at that time, although the nullification thereof should 
produce the inevitable result of restoring the ancient frontiers 
of the Great Lake, the La Flor and the San Juan rivers. 



180 . 

Costa Rica never thougM that the treaty of limits of 1858 
was beneficial to her, and, if she shows herself earnest to 
maintain its validity, it is only for the sake of peace and 
tranquility, gifts which her children always held in high 
esteem, and always considered preferable to the possession 
of a strip of land, when no sacrifice of national dignity was 
required. Not once, nor twice, has the Costa Rican Foreign 
Ofl&ce declared, in the most bitter part of the struggle, that 
the rescission of the treaty would be accepted by it, provided 
that Nicaragua should assume the responsibility of taking 
the initiative step, by which everything would be restored to 
its original condition ; but this proposition was not enter- 
tained in Nicaragua, who, indeed, confuses the mind with her 
incomprehensible conduct, alleging, on the one side, the nullity 
of the convention of limits because she feels herself injured 
by it, while, on the other, refusing to accept the rescission of 
the compact when suggested to her. 

The only explanation that this fact admits of is that the 
present question has been, for Nicaragua, a matter of do- 
mestic politics rather than an international affair — an idea 
which subsequent events have corroborated, because the 
treaty lately concluded at Managua, which put an end to the 
question, after having obtained the general approval of the 
country, and in spite of the support of the Administration 
which made it, was finally rejected through partisan interests 
and influences. 

Those who act in this way do not realize how much harm 
they do to the real and fundamental interests of their own 
country. They do not understand that in reopening the ques- 
tion of validity or nullity of the treaty of 1858, which the 
Managua convention settled, the work of the interoceanic 
canal, the exponent of Central American patriotism, to which 
the United States of America looks with interest, and which 
is a work of universal importance, and by which both Costa 
Rica and Nicaragua will raise themselves to a great height, 
cannot but be embarrassed by differences which must be 
smothered on its account. 



181 

Fortunately, the end of such a disagreeable contention is 
near at hand. Soon the upright and learned Chief Magis- 
trate of this great nation will say on Avhose side justice rests, 
and the Powers of both hemispheres will learn for their fu- 
ture guidance whether it has been judicious to maintain that 
an international compact, concluded by duly authorized pleni- 
potentiaries, approved by the Chief Magistrates of the con- 
tracting States, ratified by the national representation of the 
two countries, exchanged in a solemn and special form, le- 
gally promulgated, communicated officially to all friendly na- 
tions, and executed and complied with in good faith for many 
years, is no more than blank paper, and has to fall before 
forensic subtleties, behind which the desire of breaking it 
appears concealed. 

Costa Rica confidently relies upon the wisdom and right- 
eousness of the Arbitrator. She trusts in the self-evident 
justice of her cause, and confidently expects a favorable 
decision. But should she be disappointed in this expec- 
tation, her deference and respect for the decision will be 
none the less. 

PEDEO PEREZ ZELEDON, 
Envoy Extraordinary and Minister 

Plenipotentiary of Costa Ricu. 

Washington, D. C, 

Octoler ^Wi, 1887. 



DOCUMENTS. 



DOCUMENTS. 



No. 1. 



Treaty of Limits between Costa Rica and Nicaragua^ con- 
cluded April 15t/i, 1858. 

We, Maximo Jerez, Minister Plenipotentiary of the Gov- 
ernment of the Republic of Nicaragua, and Jose Maria 
Canas, Minister Plenipotentiary of the Government of the 
Republic of Costa Rica, having been entrusted by our re- 
spective Governments with the mission of adjusting a treaty 
of limits between the two Republics, which should put an 
end to all the differences which have obstructed the perfect 
understanding and harmony that must prevail among them for 
their safety and prosperity, and having exchanged our respec- 
tive powers, which were examined by Hon. Senor Don Pedro 
R. Negrete, Minister Plenipotentiary of the Government of. 
the Republic of Salvador, exercising the functions of frater- 
nal mediator in these negotiations, who found them to be 
good and in due form, as we on our part also found good 
and in due form the powers exhibited by the said Minister, 
after having discussed with the necessary deliberation all 
the points in question, with the assistance of the represent- 
ative of Salvador who was present, have agreed to and ad- 
justed the following Treaty of Limits between Nicaragua and 
Costa Rica. 

Article I. 

The Republic of Nicaragua and the Repubhc of Costa Rica 
declare in the most solemn and express terms that if for one 
moment they were about to enter into a struggle for reason 
of limits and for others which each one of the high contract- 



186 

ing parties considered to be legal and a matter of honor, now 
after having given each other repeated proofs of good un- 
derstanding, peaceful principles, and true fraternity, they 
are willing to bind themselves, as they formally do, to secure 
that the peace happily re-established should be each day 
more and more affirmed between the Government and the 
people of both nations, not only for the good and advantage 
of Nicaragua and Costa Rica, but for the happiness and 
prosperity which, to a certain extent, our sisters, the other 
Central American Republics, will derive from it. 

Article II. 

The dividing line between the two Republics, starting from 
the Northern Sea, shall begin at the end of Punta de Cas- 
tilla, at the mouth of the San Juan de Nicaragua river, and 
shall run along the right bank of the said river up to a point 
three English miles distant from Castillo Viejo, said distance 
to be measured between the exterior works of said castle and 
the above-named point. From here, and taking the said 
works as centre, a curve shall be drawn along said works, 
keeping at the distance of three English miles from them, 
in its whole length, until reaching another point, which shall 
be at the distance of two miles from the bank of the river on 
the other side of the castle. From here the line shall con- 
tinue in the direction of the Sapoa river, which empties into 
the Lake of Nicaragua, and it shall follow its course, keeping 
always at the distance of two miles from the right bank of 
the San Juan river all along its windings, up to reaching its 
origin in the lake ; and from there along the right shore of 
the said lake until reaching the Sapoa river, where the line 
parallel to the bank and shore will terminate. From the 
point in which the said line shall coincide with the Sapoa 
river — a point which, according to the above description, must 
be two miles distant from the lake — an astronomic straight line 
shall be drawn to the central point of the Salinas Bay in the 
Southern Sea, where the line marking the boundary between 
the two contracting Republics shall end. 



187 

AllTK'iLE III. 

Such surveys as may be required to locate this boundary, 
whether in whole or in part, shall be made by Commissioners 
appointed by the two Governments ; and the two Govern- 
ments shall agree also as to the time when the said survey 
shall be made. Said Commissioners shall have the power 
to somewhat deviate from the curve around the castle, from 
the line parallel to the banks of the river and the lake, or 
from the astronomic straight line between Sapoa and Sa- 
linas, if they find that natural land-marks can be substituted 
with advantage. 

Article IV. 

The Bay of San Juan del Norte, as well as the Salinas 
Bay, shall be common to both Republics, and, therefore, both 
the advantages of their use and the obligation to contribute 
to their defence shall also be common. Costa Kica shall be 
bound, as far as the portion of the banks of the San Juan 
river which correspond to it is concerned, to contribute to 
its custody in the same way as the two Republics shall con- 
tribute to the defence of the river in case of external aggres- 
sion ; and this they shall do with all the efficiency within 
their reach. 

Article Y. 

As long as Nicaragua does not recover the full possession 
of all her rights in the port of San Juan del Norte, the use 
and possession of Punta de Castilla shall be common and 
equal both for Nicaragua and Costa Rica ; and in the mean- 
time, and as long as this community lasts, the boundary shall 
be the whole course of the Colorado river. It is furthermore 
stipulated that, as long as the said port of San Juan del 
Norte remains 2b free port, Costa Rica shall not charge Nic- 
aragua any custom duties at Punta de Castilla. 



188 
Aeticle VI. 

The Republic of Nicaragua shall have exclusively the do- 
minion and sovereign jurisdiction over the waters of the San 
Juan river from its origin in the Lake to its mouth, in the 
Atlantic ; but the Republic of Costa Rica shall have the per- 
petual right of free navigation on the said waters, between 
the said mouth and the point, three English miles distant 
from Castillo Yiejo, said navigation being for the purposes 
of commerce either with Nicaragua or with the interior of 
Costa Rica, through the San Carlos river, the Sarapiqui, or 
any other way proceeding from the portion of the bank of 
the San Juan river, which is hereby declared to belong to 
Costa Rica. The vessels of both countries shall have the 
power to land indiscriminately on either side of the river, at 
the portion thereof where the navigation is common ; and no 
charges of any kind, or duties, shall be collected unless when 
levied by mutual consent of both Governments. 

Article YII. 

It is agreed that the territorial division made by this treaty 
cannot be understood as impairing in any way the obliga- 
tions contracted whether in public treaties or in contracts of 
canalization or public transit by the Government of Nic- 
aragua previous to the conclusion of the present treaty; 
on the contrary, it is understood that Costa Rica assumes 
those obligations, as far as the portion which corresponds to 
its territory is concerned, without injury to the eminent do- 
main and sovereign right which it has over the same. 

Article YIII. 

If the contracts of canalization or transit entered into by 
the Government of Nicaragua previous to its being informed 
of the conclusion of this treaty should happen to be invali- 
dated for any reason whatever, Nicaragua binds herself not 



189 

to euter into any other arrangement for the aforesaid pur- 
poses withoiit tirst hearing the opinion of the Government 
of Costa Kica as to the disadvantages which the transaction 
might occasion the two countries ; provided that the said 
opinion is rendered within the period of 30 days after the 
receipt of the communication asking for it, if Nicaragua 
should have said that the decision was urgent ; and, if the 
transaction does not injure the natural rights of Costa Rica, 
the vote asked for shall be only advisory. 

Article IX. 

Under no circumstances, and even in case that the Repub- 
lics of Costa Rica and Nicaragua should unhappily find them- 
selves in. a state of war, neither of them shall be allowed to 
commit any act of hostility against the other, whether in the 
port of San Juan del Norte, or in the San Juan river, or the 
Lake of Nicaragua. 

Article X. 

The stipulation of the foregoing article being essentially 
important for the proper custody of both the port and the 
river against foreign aggression, which would affect the gen- 
eral interests of the country, the strict performance thereof 
is left under the special guarantee which, in the name of the 
mediator Government, its Minister Plenipotentiary herein 
present is ready to give, and does hereby give, in use of the 
faculties vested in him for that purpose by his Government. 

Article XI. 

In testimony of the good and cordial understanding which 
is established between the Republics of Nicaragua and Costa 
Rica, they mutually give up all claims against each other, on 
whatever ground they may be founded, up to the date of the 
present treaty ; and in the same way the two contracting par- 



190 

ties do hereby waive all claims for indemnification of damages 
which they might consider themselves entitled to present 
against each other. 

Aeticle XII. 

This treaty shall be ratified, and the ratifications thereof 
shall be exchanged, at Santiago de Managua within forty days 
after it is signed. 

In testimony whereof we have hereunto subscribed our 
names to the present instrument, executed in triplicate, to- 
gether with the Hon. Minister of Salvador, and under the 
countersign of the respective secretaries of Legation, at the 
city of San Jos^, in Costa Hica, on the 15th day of April, in 
the year of our Lord 1858. 

MAXIMO JEEEZ. 
JOSE M. CANAS. 
PEDRO ROMULO NEGRETE. 
MANUEL RIVAS, 
Secretary of the Legation of Nicaragua. 

SALVADOR GONZALEZ, 
Secretary of the Legation of Costa Rica. 
FLORENTINO SOUZA, 
Secretary of the Legation of Salvador. 

Additional Act. 

The undersigned. Ministers of Nicaragua and Costa Rica, 
wishing to give public testimony of their high esteem and of 
their feelings of gratitude towards the Republic of Salvador, 
and the worthy representative of the same. Col. Don Pedro 
R. Negrete, have agreed that the treaty of territorial limits 
be accompanied with the following declaration, namely : 

" Whereas, the Government of Salvador has given to the 
Governments of Costa Rica and Nicaragua the most authentic 
testimony of its noble feelings, and of its high appreciation 
of the value and necessity of cultivating fraternal sympathy 



191 

among these Kepublics, and lias interested itself as efficiently 
as friendly in the equitable settlement of the differences which 
unhappily have existed between the high contracting parties, 
a settlement which has been secured by the two Legations, 
owing in great part to the estimable and efficient action of the 
Hon. Senor Negrete, Minister Plenipotentiary of the said 
Government, who proved to be the right person to accom- 
plish the generous mediation for which he was appointed, 
and who has known perfectly well how to meet the inten- 
tions of his Government, and owing also to the important 
aid, to the learning and to the impartial suggestions of the 
same Minister during the discussion of the subject, we, the 
Representatives of Costa Eica and Nicaragua, in the name 
of our respective countries, do hereby fulfil the pleasant duty 
of declaring and recording here all the gratitude which we 
feel for the patriotism, high mindedness, fraternity, and be- 
nevolence characterizing the Government of Salvador. 

In testimony whereof we have hereunto subscribed our 
names and signed this, in triplicate, in the presence of the 
Hon. Minister of Salvador, under the countersign of the re- 
spective Secretaries of Legation, in the city of San Jose, the 
capital of Costa Rica, on the 15th day of April, in the year 
of our Lord 1858. 

MAXIMO JEREZ. 

JOSE M. CANAS. 

MANUEL RIYAS, 
Secretary of the Legation of Nicaragua. 

SALYADOR GONZALEZ, 
Secretary of the Legation of Costa Rica. 



192 



No. 2. 



Decree of the Federal Congress of Central America in 1825, 
approving the annexation of Nicoya to Costa Rica. 

The Federal Congress of the Eepublic of Central America, 
taking into consideration, firstly, the reiterated petitions of the 
authorities and municipal bodies of the towns of the district 
of Nicoya, asking for their separation from Nicaragua and 
their annexation to Costa Rica ; and secondly, that the said 
towns and people actually annexed themselves to Costa Rica 
at the time in which the political troubles of Nicaragua took 
place ; and thirdly, the topographical situation of the same 
district, has been pleased to decree, and does hereby deceee : 

Aet, 1. For the time being, and until the demarcation 
of the territory of each State provided by Art. VII of the 
Constitution is made, the district of Nicoya shall continue to 
be separated from Nicaragua and aniaexed to Costa Rica. 

Art. 2. In consequence thereof, the district of Nicoya 
shall recognize its dependence upon the authorities of Costa 
Rica, and shall have, in the Legislature of the latter, such 
representation as corresponds to it. 

Art. 3. This decree shall be communicated to the Assem- 
blies of Nicaragua and Costa Rica. 

Let it pass to the Senate. 

Given at Guatemala December 9, 1825. 

[From the " Resena Historica de Centro-AmSrica," by Lorenzo Montufar, 
Guatemala, 1881, Vol. IV, p. 383.] 



193 



No. 3. 

The state of things existing at the time of the labors of the 
Constittient Assembly is declared to he an extraordinary 
regitne^ loherein the constitutional rules in force under 
regular circumstances could he laid aside. 

Session of the 30tli of November, 

***** -x- * 

There were present fourteen members, and absent Senores 
Lacayo and Machado on account of sickness, and Mejia, Sa- 
linas, Basilio, and Carazo for other reasons. * * * 

Senores Baca and Chamorro (Don Pablo) said that they 
wanted to explain their negative votes to the decree of the 
28th instant, and, the President having acceded to their wish, 
it is hereby recorded that the said gentlemen refused to vote 
in the affirmative because they understand that the faculty 
of exercising the acts which the decree refers to is included 
among the faculties of the legislative power, and that one 
thing is faculties of the legislative power and another thing 
faculties of legislation. 

******* 

Senor Lopez made the following motion : " Whereas the 
election of justices desired to be made by this august body 
may find an insuperable obstacle in the scarcity of men prop- 
erly qualified for such offices, I suggest to you that, before 
making the said election, you pass a resolution rendering the 
present members of this body to be eligible, since the consti- 
tutional provision which excludes the ■memhers of Congress from, 
serving injudicial offices can only be understood during an 

ORDINARY REGIME." 

The same Senor Lopez asked this to be declared urgent ; 

and Senor Cesar, having made a previous motion that all 

questions referring to the faculties of the Executive Power 

should be first decided, and that the questions in regard to 

13 



194 

the judiciary should be postponed to another day, the mo- 
tion of Sefior Cesar was carried. * * * 
The session was adjourned. 

PEDEO ZELEDON, 

Vice-President. 
J. MIGUEL CAEDENAS, 

Secretary. 
FEANCISCO JIMENEZ, 

Secretary. 
[From "La Gaceta de Nicaragaa" No. 2, January 9, 1858.] 



195 



No. 4. 

Communication from the Costa Rican Secretary of State — It 
shows the ardent desire of Costa Rica to settle finally and 
forever^ the questions pending hetween it and Nicaragua, even 
at the sacrifice of its own rights and its national pride. 

National Palace, 
San Jose, Decemher 15, 1857. 

To the Plenipotentiaries in Nicaragua : 

I have had the pleasure to receive your very estimable 
communications of the 29th and 30th of November past, with 
inclosure, consisting of a copy of the letter addressed by both 
of you from the city of Rivas to the Secretary of Foreign 
Relations at Managua. I have also received your despatches 
dated at Rivas on the 9th instant, and inclosures marked 
Nos. 7, 11, 12, and 13, as well as copies of the treaty made 
by you on the 8th instant, and documents appended thereto. 

His Excellency the President of the Republic having ac- 
quainted himself with the tenor of the ten articles of the 
agreement above named, and with the explanations contained 
in your despatches, has directed me to tell you both, in reply, 
as I have the honor to do, that only through the fatality of 
circumstances under which the Central American countries 
find themselves at present, owing to the recent filibustering 
invasion, he could have been moved to entertain and con- 
sider such stipulations as the ones referred to, which, while 
proving that Nicaragua did not think of the dangers we all 
are now running^ show also that she did not take into account 
the innmnerahle sacrifices that the Government and people of 
Costa Rica have made in order to cause their ancient rights, 
and their signification at the present day, to he recognized. 

Notwithstanding this, the undei^signed will refrain from 
making any of those remarks which naturally spring up from 
the consideration of the terms on which some one of the conces- 



196 

sions of Nicaragua have heen made, requiring in compensation 
thereof the sacrifice of such immense interests as are involved 
iti the concessions of Costa Rica ; hit he will state, however, 
that from, the moment in which the Costa Rican Government 
noticed the attitude talfen hy that of Nicaragua, and the char- 
acter of the accusations made hy the latter against the former, 
it firmly decided to abandon even those positions which had heen 
conquered at the cost of Costa Rican Uood, although without 
any intention to retain them, except during the period of the 
common danger. Under these circumstances, and acting always 
under the impulse of its peaceful ideas, and of its vehement 
desire of saving the independence of the Central American soil, 
the Government, setting aside and removing whatever obstacles 
might he found in its way, even at the cost of great sacrifices, 
has decided to refer the said treaty immediately to the consid- 
eration of the Congress of this Republic. There seems to he 
no doubt that the generous and noble feelings of the representa- 
tives of the Costa Rican people will induce them, to sacrifice, 
as the Executive does, the rights herein involved, and ratify, 
even to the detriment of a just feeling of national pride, the 
treaty which you both have concluded ; and with this Nicara- 
gua is given a very significant testim-ony of the loyalty and 
disinterestedness of Costa Rica, and how highly it values the 
national Union and independence in the presence of the risks 
to which they are exposed. 

As soon as the national representation of Costa Eica seals 
with its approval the said treaties, I shall have the honor to 
send them to you by messenger, it being understood that in 
the meantime the Constituent Assembly of Nicaragua will 
lend to them the same attention, in ordee that all those 

QUESTIONS AS HAVE DIVIDED THESE TWO COUNTRIES BE FOREVER 

SETTLED, and the two countries themselves may, with entire 
freedom and liberty, attend to their preservation. 

I have the honor to subscribe myself, with sincere expres- 
sions of high esteem and consideration, your obedient servant, 

NAZAKIO TOLEDO. 



197 



No. 5. 

Communication shoioing the spirit of conciliation and fra- 
ternity ichich prevailed in the m,aking of the treaty of limits. 
— The limits between Costa Rica and Nicaragua are, more 
than anything else, Internal or domestic jurisdictio7ial bound- 
aries. 

Managua, January 18, 1858. 

To the Secretary for Foreign Relations of the Republic of 
Costa Rica. 
Sir : The treaty adjusted on tlie Stli of December ultimo, 
between the Commissioners of the Government of your Ke- 
pubhc and the President of Nicaragua, General Don Tomas 
Martinez, was submitted to the Constituent Assembly of this 
Kepublic ; and that august body, after giving the subject its 
most attentive meditation, decided that, in order to remove 
such obstacles as present themselves for its ratification, the 
negotiations of peace, amity, limits, and alliance between the 
two countries should be continued, so as to conciliate their 
respective interests and secure their independence. This 
will be shown to you by the terms of the decree, an author- 
ized copy of which I have the honor to enclose. 

TT W W TT VT vT 

The limits between the Central American States are no more 
than limits dividing sections of one and the same State. More 
than bai'riers to opposite or conflicting interests, they have to 
be considered as internal or domestic jurisdictional boundaries. 
The States of Central America are no more than one people, 
whatever boundaries may be drawn to separate them from 
each other. And for this reason such questions as inay 
arise out of this subject should never be carried to the ex- 
treme which has been attempted, unless some responsibility 
appears involved in it, which, affecting the interests of the 
one country, may react against the other. No difficulty ap- 
pears to exist for the arrangement concerning reciprocal com- 



198 

merce, and that of foreign countries through the San Juan 
river ; and as the maintaining their independence is a com- 
mon desire of the two Republics, no obstacle appears to 
exist for combining for the mutual defence of that sacred 
right. My Government earnestly desires that the people of 
both Costa Rica and Nicaragua may form a close unity, and 
appear as if they were 07ily one people ; and in compliance 
with its duty, it is ready to appoint at once the proper 
Commissioners, who, in union with those whom your Re- 
public may select, should give satisfactory conclusion to the 
pending negotiations. My Government expects that yours 
will be pleased to communicate to your own Commissioners 
such instructions as are required, for the reasons above ex- 
pressed, as it has on its own part done to-day. 

•se- •x- * * * * 

GREGORIO JUAREZ. 

[From the "Gaceta de Nicaragua," No. of January 25, 1858.] 



199 



No. 6. 



Congratulation hy the United States Miniater for the near set- 
tlement of the differences hetween Costa Rica and Nicara- 
gua. — Speech of Gen Miraheaa B. Lamar, Envoy Extra- 
ordinary and Minister Plenipotentiary of the United States 
in Nicaragua. 



" May Your Excellency allow me to express, in conclusion, 
liow gratifying it is for me that the storm of war which not 
long ago threatened this country and one of her neighboring 
sisters has vanished before the serene brilliancy of another 
policy much more to be desired ; that Nicaragua and Costa 
Mica have put an end to their controversies., and that, as an- 
nounced hy everything, their old fraternal, peaceful relations 
are to he re-estahlished upon solid foundations. Who can say 
what may come out of such a happy event ? It may, per- 
haps, conduce to the union of the two countries. And some- 
times I have even thought that such a policy should neces- 
sarily promote the happiness of both. In my opinion such 
an example should be followed with great advantage by all 
the States of Central America, whose reunion under their 
former Federal Constitution would not only secure for them 
the benefits of peace, and strength, and dignity, but would 
place them on the same level as other important nations, 
rendering them able to compete with them in the prosecution 
of prosperity and glory. If Nicaragua, inspired by such 
feelings, should take the first step for the accomplishment of 
such a great enterprise she would win for herself a crown of 
immortal honor and the gratitude of all hearts which throb 
for the good of this country and the future progress of its 
people." 

[From the Gaceta de Nicaragua, No. 7, February 13, 1858.] 



200 



No. 7. 

Note of the Costa Rican Secretary of State showing the peace- 
ful disposition of Costa JRica in regard to the question of 
limits. 

San Jose, February 15, 1858. 

To the Minister of Foreign Relations of the Republic of Nic- 
aragua : 

I have had the honor to receive your estimable communi- 
cation, dated at Managua, on the 18th of January instant, to 
which a copy of the Decree No. 19 of the 15th of the same 
.month of January, enacted by the Congress of your Republic, 
was appended. 

His Excellency the President of Costa Eica had flattered 
himself that all the questions which for" such a long time had 
maintained two bordering and sister nations in disagreement, 
although for so many reasons they are called to form but one 
family, one nation, and to consolidate and combine their re- 
spective rights and prerogatives to save their own existence, 
overcome dangers and threats from outside, retain their 
political autonomy, and secure the accomplishment of their 
future destinies, were settled satisfactorily to both parties by 
means of the treaty of December 8, which this Government 
readily approved and which was ratified with no less readi- 
ness by the legislative body, showing by all this the self-de- 
nial which was required by circumstances, and overlooking 
the disadvantages and the great sacrifices which Costa Eica 
incurred for the sake of harmony, good friendship, and well 
understood interests of both Eepublics. 

Nevertheless, if, as seen by your despatch and by the de- 
cree No. 19 of January 15, some obstacles have presented 
themselves, which from their magnitude, their nature, and 
their great political and social moment render it necessary to 
postpone the consummation of an act which in many respects 
involves the interests of the whole of Central America, and 



201 

was intended to put an end to unfortunate territorial ques- 
tions, my Government cannot ignore the weight of your ar- 
guments in support of the decree enacted by the Congress of 
your Bepublic, rejecting the treaty of peace and Hmits which 
had been conchided by the President, Don Tomas Martinez, 
and the Commissioners of Costa Rica. 

My Government is pleased, however, to see the provision 
in the said decree to the effect that the negotiations should 
continue, and also the activity with which your Government 
has carried this provision at once into effect by appointing 
commissioners who, in union with such commissioners as be 
appointed by my Government, should discuss again and ad- 
just a settlement of such vital interest. 

You may be assured that Costa Rica earnestly and sin- 
cerely desires to preserve good understanding, friendship, 
and fraternal harmony with Nicaragua, and that it is there- 
fore animated with the best wishes in favor of the peace of 
b(5th countries, it being persuaded of the intimate connec- 
tion, both in interest, happiness, and danger, which exists be- 
tween them. 

So it is that I can assure from this moment, and the Gov- 
ernment of Nicaragua can depend upon it, that every con- 
sideration and respect will be shown in this Republic, with 
pleasure and earnestness, to the gentlemen that your Govern- 
ment may select for the important mission above alluded to. 

His Excellency the President expects that the efforts 
which Nicaragua is going to make, the honorable and grati- 
fying mediation of Salvador, exercised through its worthy 
Minister, Senor Negrete, who is already in this capital, and 
the exceedingly favorable disposition of my own Government, 
will give such results as will correspond to the interests to be 
dealt with and to the good name of the States which con- 
tributed to it. 

Please accept the testimony of the distinguished consid- 
eration with which I subscribe myself your attentive servant, 

NAZARIO TOLEDO. 



202 



No. 8. 



Communication from the Secretary of State of Coata Rica, 
showing that the initiatio?i of the treaty of 1858 was due to 
the f'iendly mediation of the Government of Salvador, and 
to overtures made by Nicaragua, subsequent to the repudia- 
tion by the latter of the treaty of 1857 which Costa Rica 
had approved of 

Department of Foeeign Relations op Costa Eica, 

National Palace, 
San Jose, February 16, 1858. 

Sir : His Excellency the President of this Republic has 
officially received to-day His Excellency Don Pedro E. Ne- 
grete. Envoy Extraordinary and Minister Plenipotentiary of 
Salvador, who comes with the most important and gratifying 
mission to mediate in the question of territorial limits. 

Although this Government has given repeated proofs' of 
its desire to obtain a settlement, which with no less frequency 
has been made illusory ; although its best wishes proved to 
be fruitless when it accredited a Legation, with ample in- 
structions, to remove by an equitable settlement the only 
obstacle capable of hindering the relations and reciprocal 
interests of both Governments from being strengthened ; al- 
though the rejection of the treaty of December 3d, was cal- 
culated to inspire diffidence and cause this Government to 
be more circumspect in entering into further negotiations ; 
notwithstanding all that, my Oovernment^ taking into consid- 
eration the friendly intervention of the Government of Salva- 
dor, and its efforts, both cotnmendable and honorable, in favor 
of Costa Rica as well as Nicaragua, and the fraternal mani- 
festations of the worthy Salvadorean Minister, has not felt 
able to refuse a favorable hearing to the statements made by 
Senor Negrete on behalf of his Government, and therefore it 
finds itself well disposed to listen to such propositions as may 
be made by the Government of Nicaragua, hoping that on this 



203 

occasion the efforts of Costa Kica and tlie sacrifices already 
made by her in different waj-s should not prove useless. 

An answer to this effect has been given with pleasure to 
the Minister of Salvador, who, even before his official re- 
ception, had suggested that a Legation frovi your' Hepublic 
should he 'received hei^e, and declared that the place for the 
negotiation should be in this capital, since our Legation in 
your capital has been withdrawn. 

I subscribe myself, with sentiments of the greatest consid- 
eration and respect, your obedient servant, 

NAZAEIO TOLEDO. 

To His Excellency The Minister of Foreign Relations of 
the Republic of Nicaragua, Managua. 



204 

No. 9. 

Act of Exchange of Ratifications of the Treaty of Limits. 

I, Tomas Martinez, President of the Eepublic of Nicaragua, 
and I, Kafael Mora, President of the Eepublic of Costa Eica, 
fully and competently authorized by the respective Congresses 
of Nicaragua and Costa Eica to perform the. exchange of 
ratifications of the treaty of territorial limits, which was 
signed by Plenipotentiaries of both Eepublics and by one of 
Salvador as mediator power on the 15th of April instant, at 
San Jos6, the Capital of Costa Eica, said Plenipotentiaries 
having been, on the part of the Eepublic of Nicaragua, Gen- 
eral Don Maximo Jerez, on the part of that of Costa Eica, 
General Don Jos^ Maria Canas, and on the part of Salvador, 
Col. Don Pedro Eomulo Negrete, having met at the city of 
Eivas, in Nicaragua, for the purpose aforesaid, have this day 
performed the exchange of the respective official instruments 
of ratification of the said treaty of April 15th, and drawn 
up and signed in triplicate, as we do now, the present act of 
exchange, which will be countersigned by the respective Sec- 
retaries of Foreign Eelations of Nicaragua and Costa Eica, 
Lie. Don Gregorio Juarez and Dr. Don Nazario Toledo. 

Done this 26th day of the month of April, in the year of 
our Lord 1858. 

TOMAS MAETINEZ. 
JUAN EAFAEL MOEA. 
GEEGOEIO JUAEEZ, 
Secretary of State for Foreign Relations. 

NAZAEIO TOLEDO, 
Secretary of State for Foreign Relations. 

[From the " Gaceta de Nicaragua," No. 15, May 8, 1858.] 



205 



No. 10. 



FJdito'i'ial of the Official NeAmpaper of JSicaragua on the Con- 
clusion of the Treaty. — It shoios the spirit of conciliation 
and fratermty of Costa Bica and Nicaragua. — Thanks 
given to the Governm.ent of Salvador for its friendly medi- 
ation. 

Peace between Nicaragua and Costa Eica. 

The ancient question of limits hetioeen the two JRepuhlics, 
wliich lias imposed so many sacrifices on both of tliem, and 
wliicli so often has occupied their attention at a moment in 
which it was imperative for them to devote it to something 
else of a much greater character ; that fatal difference, fruit- 
ful source of libellous publications, disgraceful to the dignity 
of the public press ; that dispute, in fine, which, exciting the 
minds, often puts us face to face, ready to fight and to redeem 
with blood the wrong done, or alleged, appears now to have 
been, as it indubitably has been, comproviised iji the r)iost 
harmonious mnanner. The stains which soiled the pages of 
the history of the two countries have been removed, and 
that fraternity which God established between their people, 
and which men attempted to ignore, has been promoted and 
fostered. 

Up to this moment the Government has not yet any knowl- 
edge of the treaty concluded to this effect. It scarcely knows 
about it, anj^thing else than it was concluded on very equi- 
table terms. But this is enough to make it feel satisfied for the 
accomplishment of its expectations and the success of the 
labors lately undertaken. 

True it is, indeed, that there is no question in this world 
which cannot be solved when there is a disposition to do so. 
Diplomacy has saved the human race from shedding as much 
blood as has been shed when it proved to be unable to 
exercise its empire. 



206 

A conviction, sufl&ciently founded, tells us that this time 
there will be no obstacle for the ratification of the treaty, 
both because of the general desire that such differences he at least 
adjusted, even by setting aside some right or another, and 
because, as it is reported, the settlement has heen made in such 
a way as not to attack former engagements, and fully satisfy 
the tivo peace-making parties. 

The Government officials who have been able to render 
themselves superior to the passions begotten and fostered in 
the course of the controversy ; the persons who have inter- 
vened, or may in the future intervene, to seal the cordiality now 
coming into existence, and develop it to such a degree as is 
becoming to countries so intimately connected with each 
other, have crowned themselves with glory, and conquered 
for their native countries, not a new province won by force of 
arms, but peace, rest, fraternity, and the benevolence of a 
sister Republic, with which it has to run the same fate, since 
the interests which connect it with her are identical. 

The Government of Salvador, by selecting such an intelli- 
gent and active representative as Colonel Don Pedro Romulo 
Negrete to carry into effect its generous mediation, has given 
full evidence of the deep concern that it felt in the uncertain 
and dangerous condition of things between Nicaragua and 
Costa Rica, and has won, the same as its indefatigable repre- 
sentative, the purest satisfaction of having done her sisters one 
of the most esthnahle henefits thai could' he expected. 

[From the " Gaceta de Nicaragua," No. 14, May 1st, 1858.] 



207 



No. 11. 
Leave-taking of President Mora. 

EiVAS, San Juan del Sue, May 2, 1858. 

To His Excellency Don Tomas Martinez, 

President of Nicaragua. 

Sir: The great objects of. our meeting at Rivas having 
been so happily accomplished, I return to my country with 
feelings of satisfaction and contentment for the benevolent 
attentions kindly extended to me, both by Your Excellency, 
the various members of the Government, and some distin- 
guished citizens of your Republic. 

I congratulate myself for having had the good fortune of 
signing, with Your Excellency, the compacts which put an 
end to all the causes of disturbance which have affected the 
relations, both political and commercial, between our respec- 
tive countries, and which will regulate them in the future and 
enable Nicaragua and Costa Rica to fight together against 
the pretensions of filibusterism, as well as to cement in the 
future our respective rights and liberties and the integrity 
and independence of the country. I congratulate myself, 
with so much more reason for all that, because the patriotic 
man who knew how to preserve the honor of the Nicaraguan 
people in the middle of difficulties and privations of aU 
classes, always struggling with the common enemy, is the one 
who, with his signature, has sealed the peace and friendship 
of both peoples, and so secured happiness and greatness to 
Nicaragua. 

Your Excellency can rely upon me for the carrying out of 
your programme of order and respect to the principle of legal 
authority. In this regard our ideas will always be in har- 
mony. I return to jny country contented, I say so again, 
making fervent wishes for the preservation of Your Excel- 
lency and for the greatness and happiness of the people of 



208 

Nicaragua, who, entrusting their destinies to Your Excellency, 
have given proof that they know how to reward merit. 
Your true and loyal friend, 

EAFAEL MOEA. 

[From the " Gaceta de Nicaragua," No. 15, May 8, 1858.] 



209 

No. 12. 
Leave-taking of Senor Negrete. 

Legation of Salvador, 

Neab the Governments of Nicabagua and Costa Rica. 

No. 17. Managua, May 6, 1858. 

To the Hon. Don Geegorio Juarez, 

Secretary of State for the Department of Foreign Relations 
of the RepulMc of Nicaragua. 

Sir : The important treaty of peace and limits between 
Costa Rica and Nicaragua, concluded at San Jos6, having 
been consummated at the city of Rivas, on the 26th of April 
last, according to the record of the exchange of ratifications 
of that date, the undersigned Plenipotentiary of Salvador has 
the pleasure to inform you of his arrival in this capital for 
the purpose of cordially greeting the Nicaraguan Govern- 
ment, congratulating it for the settlement of the grave questions 
which were pending between it and Costa Rica, and giving 
notice of the withdrawal of this legation to the capital of Sal- 
vador, where it will report to its Government the happy re- 
sxdt obtained hy the undersigned Minister in his dealings with 
the Republics of Nicaragua and Costa Rica. 

In taking his leave, it is exceedingly gratifying to the un- 
dersigned to set forth that his heart wishes with the greatest 
vehemence that the present social welfare of the Nicaraguan 
people, the domestic and foreign politics of her Government, 
and her well-founded hopes of improvement in every respect, 
be each day more and more improved and increased. Happy 
Salvador, if she succeeds in seeing Nicaragua great and pros- 
perous ! May the Supreme Ruler of Nations enlighten the 
august assembly now engaged in framing the political con- 
stitution of this Republic ! May Divine Providence be boun- 
tiful in the assistance which the Government needs for the 
better ruling of the people whose destinies are commended 
to it ! These are the wishes which Salvador wiU always make 
14 



210 

for Nicaragua, whom slie considers as her sister, and whom 
she has defended. 

This Legation, which acknowledges with gratitude the 
kind attentions and honors which the Nicaraguan people 
and Government have tendered to it, wishes, also, to record 
here, not only the said feeling, but also its fervent wishes that 
the Government may always find in the people a powerful 
support, and the people in the Government a paternal ad- 
ministration, such as is now seen in Nicaragua, with pleasure 
to Central America and satisfaction to the world. 

Animated by this desire, the Minister of the Republic of 
Salvador takes leave of the Hon. Senor Juarez, and assures 
him of the high esteem with which he subscribes himself his 
most attentive and obedient servant, 

PEDRO E. NEGEETE. 

[From the " Gaceta de Nicaragua," No. 15, May 8, 1858]. 



211 



No. 13. 

Answer to the letter of leave-taking of Col. Negrete. — Tie %s 
called apostle of peace. — Solemn a7}d effusive expression of 
gratitude tendered to Salvador. 

Department of Foreign Eelations of the 

Supreme Government of the Republic, 

Managua, May 7, 1858. 

To His Excellency Col. Don Pedro R. Negrete, 

Minister Plenipotentiary of the Government of Salvador 
near the Governments of Nicaragua and Costa Rica. 

Sir : Witli the sublime satisfaction of an apostle of peace, 
Your Excellency returns to your country full of tlie noble 
pleasure of having succeeded in corresponding both to the 
confidence of your Government and the founded expectations 
of the Governments of Nicaragua and Costa Rica. 

Thirty-four years of disagreement., or of hadly disguised 
animadversion, were sufficient to give iirth and strength to the 
most pernicious enmity hetween these two sister Repuhlics ; hit 
tJie good-will of the Governmerd of Salvador, and the prompt and 
most efficient action of Your Excellency at the most timely oc- 
casion, profiting hy the favorable disposition in which the re- 
spective Presidents found themselves, succeeded in dispelling 
in one day the ominous clouds which for more than one-third 
of a century had heen gathering. 

My Government, deeply grateful to the Government of Sal- 
vador and to the person of Your Excellency, wishes to express 
its gratitude in the present despatch in order that it may enter 
into the immortal kingdom of history and he remembered by 
future generations. 

My Government wishes for the Republic of Salvador the 
most perfect peace and harmony with the other nations of 
Central America, and all others with which it holds diplo- 
matic relations, but if, unhappily, that peace and harmony 



212 

should ever be disturbed, the Government of Your Excellency 
can always count upon the mediation of mine until reaching 
such success as desired. 

His Excellency the President wishes you a happy voyage, 
and a long and prosperous life ; and I pray Your Excellency 
to consider my own sentiments to be identical to those I have 
just expressed in the name of the Chief Magistrate, whose 
organ I have the honor to be. I further pray Your Excel- 
lency to allow me to oifer with great respect the considera- 
tion with which I subscribe myself, your humble and obedient 
servant, 

GEEGOEIO JUAEEZ. 

[From the " Gaceta de Nicaragua," No. 15, May 8, 1858.] 



213 

No. 14. 

Editonal of the ^^ Gaceta de Nicarcujua''' suhseq^tent to the 
official leave-taking of Sehores Don Juan Rafael Mora and 
Col. Negrete. — The latter is promoted to the rank of General 
as a renoard for his services. — The Nicaraguun people feel 
jiibilant for the friendly relations betiveen Costa Rica and 
Nicaragua. 

Inteeior. 

The President and Ministers Juarez, Cortez,. Jerez, and 
Negrete arrived in this city on the 4th instant highly satisfied 
all of them with the President of Costa Rica, with his Min- 
ister, Senor Toledo, and with all the persons who accompanied 
them. 

Subsequently we have been informed that the latter re- 
turned to their country no less pleased with Nicaragua; and 
this reciprocity cannot hut fill us with joy ^ since we are satis- 
fied that the hands which now have heen grasped have not heen 
grasped in vain, and that the promises of eternal peace and 
■ friendship which have heen made are sincere.^ and due to such 
convictions and faith as are seldom seen to preside over treaties 
of peace and alliance among nations. 

Col. Negrete was rewarded hy the Government with the 
coinmission of Brigadier-General, which he deserved for his 
services in the campaign against the filibusters, as well as for 
those which he has just rendered, in his capacity of mediator 
between Nicaragua and Costa Rica. This gentleman returned 
to his country on the 6th instant, after having remained two 
days in this city. 

Senor Jerez left also for Leon to join his family and enjoy 
some rest after the arduous., but very useful., labors performed 
by him, and as soon as possible he will return from there and 
place himself by the side of the Administration which so 
highly appreciates his services. * * * 

[From the " Gaceta de Nicaragua," No. 15, May 8, 1858.] 



214 



No. 15. 



Spirit of Concord which presided over the treaty. — Evident 
necessity and advisability that it should he concluded^. — Facul- 
ties of the Government to approve it. — Final character of the 
treaty. — Identical position of Costa Mica and Nicaragua. 

The " Gaceta." 

It is at all times a duty to strengthen the sovereignty and 
independence of the nation, because it is upon these condi- 
tions that the life of the State depends. Among those dis- 
putes which either directly or indirectly affect said sover- 
eignty and independence, those of limits are to be considered ; 
and for this reason their settlement is necessary to sectire solid 
peace with the neighbors and remove the obstacles ivhich 'might 
oppose the free developynent of comrnerce, industry., and prog- 
ress^ since it is well known that such disputes are a fruitful 
source of evils of the worst character. Such questions pro- 
mote uneasiness and alarm among the bordering people, give 
birth to rivalries, beget national hatred, and produce either 
a silent war of diplomatic hostilities constantly embarrassing 
the progress of the countries, or an open conflict in which 
muskets and cannons take the place which ought to have been 
reserved exclusively for reason and justice. When such dif- 
ferences arise, the bordering States contending with each 
other, although united by the contiguity of the soil and by 
the propinquity of their towns and cities, become so separated 
as to desire the complete destruction of each other. 

Unfortunately, Nicaragua and Costa Rica had been for a 
long time laboring under the disadvantages of such dissen- 
sions without finding a way of settling their differences, 
which day after day grew greater and worse, and went as far 
as to initiate a fratricidal war, precisely at that moment in 
which the filibusters prepared themselves for a new invasion, 
and carry on their plans of robbery and extermination. 



215 

JReasoji and patriotism, demanded all hinds of sacrifices to he 
viade to re-estahlish harmony hetioeen txoo neighboring lie^nib- 
lics threatened hy a common enemy ; and, reason and patriot- 
ism, have triumphed at Rivas on the '2,Qth of April instant, on 
xohich day His Excellency^ the President of the Repuhlic, 
Gen. Don Tomds Martinez, approved of and ratified the treaty 
of limits, celehi'ated hy the Ministers Plenipotentiary of Nic- 
aragua and Costa Rica, General Don Jose Maria Cdhas, and 
General Don Maximo Jerez. His Excellency put an end to 
ancient and ruinous questions, settling them hy a compromise, 
tlius strengthening the bonds of fraternity which unite us 
together, and enabling us to meet, united, stronger, and 
mightier, the depredators of our country, who by their un- 
exampled iniquities are the scandal of civilization. 

The President of Nicaragua has ratified the Jerez-Cahas 
treaty, rising the faculties xohich ivere vested in him by Legis- 
lative Decree, No. 22, authorizing him to do all that he might 
deem to he advisable for the defence of the sovereignty and inde- 
pendence of the nation. As the country cannot successfully 
undertake this defence, without unity of action on the part of 
all its members, it was necessary to eradicate completely every 
eleonent which might prevent intimacy from being established, 
and would maintain discord betvjeen two sister countries. The 
mediation of Salvador has had much part in such a happy 
result, and it has been exercised with zeal, activity, and 
brilliancy by Don Pedro Bomulo Negrete, the Commissioner 
sent to that effect. 

Henceforth, Nicaragua and Costa Kica will march in per- 
fect harmony, and Central America will enjoy this benefit, 
which will certainly appall all those who took advantage of 
our dissensions in the same way as a rich mine is worked by 
avarice and ambition. Our readers will find elsewhere in 
this paper the full text of the treaty, beginning of our concord, 
commencement of happiness and progress for the nation, 
and by perusing it they will be convinced of the sincere 
patriotism of the two Presidents, Don Rafael Mora and Don 



216 

Tomas Martinez, who have shown their good-will for the 
salvation of Central America, and for securing that this beau- 
tiful portion of the world might march in peace to fulfill the 
high destinies to which it is called. 

Having in view the same purposes, the two Presidents have 
adjusted in their interview at Rivas a treaty of commerce and 
alliance which satisfies the mercantile necessities of both 
countries and makes them combine in cases of war, whether 
filibuster or any other kind. Thej likewise signed another 
tripartite convention with the Minister mediator, in which the 
representatives of the three countries, namely, Salvador, Nic- 
aragua, and Costa Eica, come closely together and secure 
their common efforts for the defence of the country in these 
calamitous times when in order to live it is necessary to be 
mighty and powerful. 

Such a great benefit will in the future be derived from the 
timely and important visit that the President of Costa Rica 
paid to the President of Nicaragua at the City of Rivas. 
Both personages took leave of each other in the most perfect 
understanding, and both of them animated by the most phil- 
anthrophic sentiments in favor of the Republics whose des- 
tinies have been commended to their patriotic zeal. 

[From the " Gaceta de Nicaragua," No. 15, May 8, 1858.] 



217 



No. 16. 

The treaty of April 15, 1858, is com.iniuiicated to the friendly 
Govermnents as a happy termination of the protracted diffi- 
culties hetween Costa Rica and Nicaragua. 

No. 29. Department of Foreign Relations 

OF THE Republic of Costa Rica, 
National Palace, San Jose, May 12, 1858. 
Mr. Minister : His Excellency the President of this Re- 
public, being determined to employ all the means within his 
reach to set at rest all questions pending with the neighboring 
Repuhlic of Nicaragua .1 and finally settle all business pending 
between both Republics, decided to make a trip to Nicaragua 
and pa}' a visit to the President thereof, General Don Tomas 
Martinez, settling thereby with him personally all the said 
questions and business, strengthening the bonds of union 
which naturally exist among the nations of Central America, 
and devising some means of strengthening that union and 
defending the territory and independence of the same when- 
ever threatened. At the ver}^ moment in which His Excel- 
lency the President was preparing to leave this Republic, 
General Jerez presented himself at this capital as Envoy 
Extraordinary and Minister, sent by the Government of Nic- 
aragua, this having been due in part to the patriotic zeal and 
solicitude of Col. Don Pedro R. Negrete, who, in his capacity 
of Minister mediator, had been accredited near the Govern- 
ments of the two contending Republics, who had arrived at 
the moment in which the Assembly of Nicaragua had rejected 
the last arrangement celebrated at Rivas by Commissioners 
of this Republic. Senor Negi"ete, after having been received 
in public audience by this Government, and recognized in his 
diplomatic capacity, deemed it advisable to return to Nic- 
aragua and urge the sending by her Government of the Com- 
missioner whom it had offered to accredit. In consequence 



218 

of all these steps a meeting could take place of ministers 
fully authorized to settle the pending questions, principally 
the one about territorial limits. It was in this way that the 
treaty of April 15, a competent number of printed copies of 
which I have the honor to enclose, could be celebrated ; and 
that treaty loas ratified hy His Excellency General Martinez, 
President of Nicaragua, in virtue of the full authority which 
the Constituent Assembly of that Republic had given him 
for that purpose. The said treaty has been, therefore, and 
will continue to be, a substantial foundation of peace and 
union between these two bordering Republics, and it gave 
occasion to a subsequent treaty of peace, friendship, and 
commerce, which was celebrated at Rivas between the two 
Presidents of Nicaragua and Costa Rica, assisted by their 
respective Secretaries of State, a copy of which I have the 
honor to accompany to you, and which in due time will be 
submitted to the respective legislatures for the proper ratifi- 
cation. 

Another treaty of defensive alliance was also celebrated at 
Rivas, and to it Don Pedro Romulo Negrete, the Minister of 
Salvador, was a party ; and, as this treaty is to be submitted 
to the Governments of Guatemala and Honduras, I have the 
honor to' send to you an authorized copy of the same, as di- 
rected by Article IV of the same treaty. 

Information received by the President of this Republic 
about a new filibustering expedition of certain importance 
and other pressing circumstances compelled him not to con- 
tinue his voyage to the capitals of the other sections of Cen- 
tral America and postpone his visit to them until another 
more propitious occasion. In the meantime His Excellency 
feels exceedingly satisfied with the advantage which his visit 
to Nicaragua has produced, not only as far as these two Re- 
publics are concerned, but in regard to the common benefit 
of the whole of Central America, since this Government hopes 
that the great steps that have already been taken to secure 
the future welfare of the Central American States will not be 



219 

in vain, and that, if the immense results which the said steps 
must produce are accomplished, they will respond to the se- 
curing of the integrity and independence of the territory, the 
salvation of its sovereignty and its liberties, and the pros- 
perity which is incumbent to the fertility of its soil and its 
geographical position. 

With such a happy opportunity, I have the honor to as- 
sure you the distingiiished consideration, esteem, and respect 
^\dth which I subscribe myself your attentive servant, 

NAZARIO TOLEDO. 

To His Excellency The Minister of Foreign Eelations of 
the Republic of Guatemala. 



220 

No. 17. 
Validity of the Treaty. 
No. 30. Depaetment of Foreign Eelations 

OF THE EePUBLIC OF CoSTA RiCA, 

National Palace, San Jose, May 15, 1858. 

Mr. Minister : I have the honor to reply to your estima- 
ble despatch of the 3d of April, the contents of which I 
communicated to His Excellency the President of this Re- 
public. The feelings which animate your Government for 
the peace, unity, and prosperity of these bordering sister 
Republics are extremely worthy and proper in a Central 
American Government ; and, fully agreeing with such gen- 
erous sentiments, His Excellency the President of this Re- 
public, wishing to take every step which might be conducive 
to the final settle7nent of the questions pending hetween Nic- 
aragua and Costa Rica,, decided to go personally to confer 
with His Excellency Don Tomas Martinez, the President of 
Nicaragua, and try not only to put an end to the difference 
between the two countries, but also prove by this example, 
the first one ever given in the political history of Central Amer- 
ica, his cordial wishes for the good intelligence and intimate 
relations between the two neighboring countries. But in the 
moment of starting on the voyage already announced. Gen- 
eral Jerez presented himself in this capital in the capacity 
of Envoy Extraordinary of the Government of Nicaragua, 
and in company with Col. Don Pedro Romulo Negrete, who 
had the kindness to go from here to Nicaragua and act in 
this matter as mediator in representation of the Republic of 
Salvador. To all these patriotic steps it has been in part due 
that the treaty of the 15th of April was celebrated, and I 
have the honor to send to you with this note a sufficient 
number of printed copies thereof. 

The visit which His Excellency the President of this Re- 
public paid to Nicaragua on ^he 22d of April ultimo had the 



221 

good effect, not only of causing tlie arrangement of all the 
pending questions between both Republics to be terminated, 
but also of strengthening the fraternal bonds which connect 
them together, and establishing on solid foundation peace, 
friendship, and commercial relations among their people. I 
have the honor to accompany herewith, as a consequence of 
the above-named steps, the treaty of defensive alliance cele- 
brated between the two Governments, with the intervention 
of that of Salvador by means of its representative. Col. Don 
Pedro R. Negrete, 

His Excellency the President of this Republic does not 
doubt that the said treaty will be accepted by your own Gov- 
ernment, and also by that of Guatemala, and that the stipu- 
lations which it contains will serve as preliminary basis for 
other and more interesting agreements which may unite again 
the people of Central America and make them mighty in 
their union. 

Avaihng of such a plausible occasion, I have the honor to 
subscribe myself your obedient servant, 

NAZARIO TOLEDO. 

To His Excellency The Ministee of Foeeign Relations of 
the Government of Honduras. 



222 



No. 18. 



The Constitution of Nicaragua declares that the Nicaraguan 
territory horders on the south hy the Republic of Costa Mica. 
— The treaty of limits is raised to the character of fundamen- 
tal law. 

POLITICAL CONSTITUTION. 
(Promulgated August 19, 1858). 

Chapter I. 

Cf the Republic. 

Article 1. The Eepublic of Nicaragua is tlie same M^hich 
was, in ancient times, called the Province of Nicaragua, 
and, after the independence, State of Nicaragua. Its ter- 
ritory borders on the east and northeast by the sea of the 
Antilles ; on the north and northwest by the State of Hon- 
duras ; on the west and south by the Pacific Ocean ; and on 
the southeast by the Republic of Costa Rica. The laws on 

SPECIAL LIMITS FORM PART OF THE CONSTITUTION. •«- * * 

Article 3. The territory shall be divided for the differ- 
ent purposes of the administration of the Government into 
such departments, districts, and sections as the Constitution 
and the laws provide for. 

[From "La Gaceta de Nicaragua," No. 31, August 28, 1858.] 



223 



No. 19. 

The value and force of the treaty of limits is recognized, and 
one of its provisions is thus carried into effect. 

National Palace, 
Managua, April 13, 1859. 
To the Minister of Foreign Relations of the Government of 
Costa Rica. 
Sir : I have the honor to enclose for your information an 
authorized copy of the Convention made on the 12th instant 
between myself and Mr. Felix Belly, director of the enter- 
prise of the canal in regard to provisional transit, and this I 
do, for the purpose of complying with the engagement con- 
tracted BY THIS KePUBLIC WITH THE EePUBLIC OF CoSTA 

EiCA IN Article VIII of the treaty of limits of April 
15 OP LAST YEAR, in order that when the opinion of the 
Government of Costa Rica is given final action may be taken 
upon it. 

I have the honor to offer to you the sentiments of con- 
sideration and esteem with which I subscribe myself your 
attentive servant, 

PEDRO ZELEDON. 



224: 



No. 20. 

Costa Rica is recognised as a party to the contract of the 
Interoceanic Canal, and its acquiescence is asked to make cer^ 
tain modifications in it. 

Department of Foeeign Relations of Nicaragua, 
National Palace, 

Managua, April 16, 1859. 

Mr. Minister : As I have told you before, the contract 
about the canal, celebrated at Rivas on the 1st of May of 
the preceding year, was submitted to the ratification of the 
Chambers, which have granted it with the amendments and 
additions which appear from the authorized copy herewith 
accompanied. The Government, noticing that Nicaragua, 
Costa Rica, and the Company are parties to the contract, 
and that each one of them has to ratify it before it takes 
effect, and that the amendments and additions made by the 
Chambers have altered it in such a way as to require new 
ratification by the Congress of Costa Rica, and acceptance by 
Mr. Felix Belly ; noticing furthermore that the contract has 
become unpopular, and that the amendments and additions 
made by the Chambers have given rise to odious interpreta- 
tions ; — deem it proper to confer with Mr. Felix Belly, and 
to enter with him into an equitable agreement, and granting 
him the temporary permission demanded by the situation for 
giving lodgings and occupation to his engineers, laborers, &c., 
in the San Juan river and the lake, all of which is reported 
to your Government in the meantime, in order to obtain 
from your Republic the ratification which is necessary 
for carrying on the work. 

The grantee left this city yesterday satisfied with the loy- 
alty of the Government, and decided to wait for the above- 
named ratification. 

In consequence thereof the Government has placed its exe- 



225 

QUATUK to the contract as amended, and I have the pleasure 
to transmit to you a copy thereof for the purposes above in- 
dicated. 

Another contract, relative to the steamer " Virgen," which 
the Company needs to charter, has been celebrated separately, 
and in due time it was submitted to the ratification of the 
Government. 

The Company by faithfully and earnestly conducting the 
Avork will re-establish its lost credit, and if the transit is 
granted when that work is finished, all the interests will be 
conciliated. 

I have the honor to ofl'er the sentiments of my esteem and 
consideration. 

PEDRO ZELEDCN. 

To The Minister of Foreign Relations of the Government 
of the Republic of Costa Rica. 
15 



226 

No. 21. 

Official despatch acknowledging that the Nicaraguan territory 
ends at the Salinas Bay as declared hy the treaty of limits 
of 1858. 

[seal] . National Palace, 

Managua, April 27, 1859. 

SiE : The Prefect of the Department of Rivas, under date 
of the 23d instant, said to the Government as follows : " I 
have positive information that in a small island at the gulf 
OF ' Las Salinas ' wheee the tereitoey of the Eepublic 
ENDS, a great deposit of iron and other metals, taken there 
by the filibusters during the time they were in this country, 
is to be found. That deposit was concealed under a large 
straw-roofed cabin which subsequently was burned by cer- 
tain fishermen ; and I have been assured that a French- 
man of Liberia arrived there awhile ago and carried away 
on board of some boats several tools which, when taken to 
his city, constituted loads for three beasts of burden." 

" The public Treasury of Nicaragua suffered, no doubt, by 
this ; and both for this reason, as well as for the reason that 
said Island is on waters belonging exclusively to the State, it 
corresponds to it to take knowledge of the facts." 

His Excellency the President has directed me to request, 
through you, the President of your Republic, to order the 
authorities of Moracia to gather and safely keep the iron and 
other metals which may be found in the island of the Gulf of 
Las Salinas, in order that upon the proper notice and infor- 
mation of the expenses incurred in the operation my Govern- 
ment may make the proper indemnification of the latter and 
the transfer of the metal to where it may be proper. 

Trusting that your Government will comply with the re- 
quest herein made, I have the honor to renew to you the 
sentiments of esteem with which I am, your obedient servant, 

PEDRO ZELEDON. 

To The Minister op Foreign Relations of the Government 
of Costa Rica. 



227 



No. 22. 

The Nicaraguan Chambers direct Article VIII of the Treaty 
of Lh nits of April 15, 1858, to he complied with, and the 
Executive Power carries their decision irdo effect. 

National Palace, 

Managua, May 7, 1859. 

Mr. Minister : I have tlie honor to acknowledge the re- 
ceipt of your estimable communication of the 27th of April 
ultimo, dated at Eivas, enclosing the decree issued by His 
Excellency the Captain General, President of the Republic 
of Costa Rica, approving in all parts the contract entered 
into in this city on the 12th of the same month, between this 
Government and Messrs. Felix Belly & Co., granting them 
exclusive transit through the San Juan river and Lake of 
Nicaragua to the Pacific, a conteact upon which the Legis- 
lative Chambers of this Republic decided to hear the 
opinion of the government of costa rica, as required ry 
Article YIII of the treaty of limits adjusted on April 15 
of last year, between nicaragua and costa rica. 

The above-named contract will be submitted to the ratifi- 
cation of the Chambers as prescribed by the Constitution, 
because the Government has authority only for declaring 
the transit to be free and for granting it to companies under 
this and other basis established by the decree. 

The loyalty and good understanding, which are due to the 
Government of Costa Rica and to the interested parties, im- 
pose upon me the duty to give you this information, and at 
the same time, I have the honor to subscribe myself, 
Tour attentive servant, 

PEDRO ZELEDON. 

To The Minister of Foreign Relations of the Supreme 
Government of Costa Rica. 



228 



No. 23. 

Official despatch showing the validity and strength of the Treaty 
of Limits, and the execution thereof hy both Republics. 

Department of Foeeign Eelations 

OF the Kepublic of Costa Eica, 
National Palace, San Jose, May 16, 1859. 
Mr. Minister : In compliance with Article YIII of the 
final treaty of limits between this Republic and yours, and by 
note of tlie 13tli of April instant, you have been pleased to 
transmit for the knowledge of this Government a copy of the 
convention of provisional transit celebrated between you and 
Mr. Felix Belly on the 12th of the same month. 

The supreme Government of your country has been already 
informed that the Costa Eican Government has accepted as 
far as it is concerned the above-named convention ; and now 
nothing new is to be added to said acceptance. 
I remain, your attentive and obedient servant, 

NAZAEIO TOLEDO. 

To His Excellency The Minister of Foreign Eelations of 
the Eepublic of Nicaragua. 



229 



No. 24. 

Costa Bica a party to the contract of Interoceanic Canal ap- 
proves 'modifications made thereto. 

No. 45. Department op Foreign Kelations 

OF the Eepublic of Costa Eica, 
National Palace, San Jose, June 27, 1859. 

Mr. Minister : In answer to the remarks of your commn- 
nication of the 7th of May ultimo, and in accordance with 
the contents of the note addressed to you on the 16th of May, 
No. 36, the undersigned has the honor, by order of the Presi- 
dent, to transmit to you a copy of the decree enacted by the 
Congress of this Republic on the 22d instant, approving the 
amendments and additions made hy the Chambers of Nic- 
aragua to the contract with the Atlantic- Pacific Maritime 
Canal, made at Bivas on the 1st of May, last year. 

You will be pleased to submit this decree to His Excellency 
the President of Nicaragua, and to accept the testimony of 
esteem and respect mth which I subscribe myself your atten- 
tive and obedient servant, 

NAZAEIO TOLEDO. 

To His Excellency The Minister of Foreign Relations of 
the Republic of Nicaragua. 



230 



No. 25. 

Despatch showing the validity and strength of the Treaty of 
Limits, and its execution. 

No. 44. Department of Foreign Eelations 

OF THE EePUBLIC OF CoSTA EiCA, 

National Palace, San Jose, June 27, 1859. 
Mr. Minister : Sefior Don Maximo Jerez, on behalf of his 
Government, and in compliance with Article VIII of the 
Treaty of Limits, transmitted from Punta Arenas the new 
contract of transit that he made in New York on the 6th of 
June instant with the Company, or branch thereof, which was 
formerly called "American Atlantic-Pacific Maritime Canal 

Co." 

* * * * * * * 

SALVADOE GONZALEZ. 

To His Excellency The Minister of Foreign Eelations of 
the Eepublic of Nicaragua. 



231 



No. 26. 



The Oovernment of Nicaragua asks that of Costa R'lca to re- 
move its custom officers from the La Flor river ^ its forrner 
frontier, to the 7iew limit fixed hy the treaty of April 15, 
1858. 

[seal]. National Palace, 

Managua, August 3, 1859. 
Mr. MiNiSTEE : The Military Governor of the Southern 
Department has reported to the Government that the Custom- 
House officers ofyourRepuhlicon the Nicaraguan frontier still 

CONTINUE STATIONED, AS THEY WERE BEFORE, AT THE La FlOR 

RIVER, exercising authority on all the extent of the Salinas Bay 
up to Escaineca, where there is a military post of this Repub- 
lic, and on the side of the lake as far as the Sapod river oppo- 
site to Salgueros ; and that although the officer commanding 
that post has received orders to avoid all disagreement with 
the Costa Eican custom officers, as the latter interfere with 
the traffic, and even have confiscated some articles at the La 
Flor river, it is possible that some question affecting private 
interests may also require the action of the Government. 

For this reason, and considering that the former limit of 
THE La Floe river lies this side of the middle of the Gulf 
of Las Salinas, which is the new one established by Ar- 
ticle II OF THE treaty OF ApRiL 15, 1858 ; and that Sal- 
gueros is not found on the straight line spoken of hy the 
sam,e article, His Excellency, the President of the Eepub- 
lic, desiring to avoid a conflict which might injure private 
interests, and also being disposed to establish on the frontier 
the proper vigilance to avoid smuggling, which is done there 
to the great detriment of the interests of the Nicaraguan 
treasury, taking advantage of the franchise of commerce 
which the Province of Moracia and the port of Punta Arenas, 
of Costa Rica enjoy, has deemed it proper to call the atten- 



232 

tion of His Excellency tlie President of your Republic, as I 
do now through you, to the foregoing facts, and request him 
to cause the action of its custom service to he reduced to the 

LIMITS ESTABLISHED BY THE TREATY AFOEESAID ; and in Case 

that this should be difficult, owing to the fact that the divid- 
ing straight line, which is the limit on that side, has not been 
yet actually drawn, to be pleased to appoint a surveyor, enjoy- 
ing his confidence, who, in union with the one appointed by 
this Government, may proceed to locate the said line before 
private interests are further affected and the rigor of judicial 
action is resorted to. 

I have the honor to reiterate to you the sentiments of my 
greatest esteem and consideration. 

PEDRO ZELEDON. 

To The Minister of Foeeign Relations of the Supreme 
Government of Costa Rica. 



233 



No. 27. 

The Government of Costa Rica is invited to assist that of Nic- 
aragua in improimig the port of San Juan del Norte, ahnost 
destroyed by the deviation of the voters of the San Jxian 
■river into the J>ed of the Coloi'ado river. 

Nicaragua Department of Foreign Eelations, 
National Palace, 

Managua, December 13, 1859. 

Mr. Minister : The attention of the Government of Nic- 
aragua has been forcibly called to the condition of the port 
of San Juan del Norte, which has been filled up and almost 
rendered useless on account of the sand which has accumulated 
in it ever since its waters have abundantly flowed into the chan- 
nel of the Colorado river ; and such a state of things must also 
demand the attention of Costa Eica, because the interest of 
the latter in this subject is not less felt, since by existing 
TREATIES SHE HAS THE RIGHT of navigation and free import 
from there. 

The inhabitants of the town named Greytown have made 
an effort to collect subscriptions and do such work as possi- 
ble for the purpose of confining the waters to the channel of 
the Bay ; and the Government, in spite of the scarcity of the 
public resources, is trying to raise money among the merchants 
of the Eepublic, and proposes to employ all the convicts of 
the State prison, more than 40 in number, to carry on that 
work, principally by closing, by means of palisades or other 
proper works, the communication between the San Juan and 
the Colorado rivers. 

For such a purpose, and in the persuasion that Costa Eica 
will co-operate with pleasure in this work, I have been in- 
structed to invite it to do so, and I hope that you will be 
pleased to set forth in your answer in what way such assist- 
ance will be rendered, it being preferable to a great degree 



2m 

that the said assistance be pecuniary, in order to provide for 

the support of the laborers and furnish them with tools and 

other implements. 

I pray you, Mr. Minister, to submit all of this to His 

Excellency the President of your Republic, to communicate 

to me his decision, and to accept the sentiments of esteem 

and consideration with which I subscribe myself your very 

attentive servant, 

PEDRO ZELEDON. 

To The Ministee of Foreign Relations of the Republic of 
Costa Rica. 



235 



No. 28. 



Nicaragua reminds Costa Rica of the duty imposed upon 
her hy the treaty of April 15, 1858, to defend her frontiers at 
San Juan and the Bolarios Bay. 

[seal]. National Palace, 

Managua, Septemher 5, 1860. 

Sir : Your Government must certainly be aware that Wil- 
liam Walker has invaded Central America ; and, as it is prob- 
able that that bandit may attempt some operation on the 
side of the river of San Juan del Norte, my Government has 
taken such steps as proper to protect that frontier and rein- 
force its military posts. 

But as accoeding to the treaty of Apeil 15, 1858, as 

EEAD IN ITS IVtH AeTICLE, BOTH YOUE REPUBLIC AND THIS OUGHT 

TO TAKE caee OF THE DEFENCE OF THAT LINE, my Government 
expects that your Government, in view of the threatening 
danger, will comply with the saceed and inteeesting duty 
INCUMBENT UPON IT, by sending there such a force as may be 
necessary to protect the locality and repel the enemy if the 
invasion should take place through that point. 

My Government thinks it proper to inform yours, further- 
more, that another filibustering expedition, under the com- 
mand of Henningsen, an old comrade of Walker, is now 
being organized in California, and that it is very probable 
that they intend to land at some of the ports on the Pacific 
coast, for which reason it is advisable that sufficient forces 
are sent to the Salinas Bay, the defence of which is also en- 
trusted to the Government of Costa Rica. 

All of which I have the honor to communicate to you by 
order of His Excellency the President of this Republic, for 
the purposes above referred to, hoping that you will be 



2m 

pleased to communicate to me the decision that your Govern- 
ment may reach on the subject. 

I avail myself of this opportunity to offer you my respects. 

HEEMDO. ZEPEDA. 

To The Ministee of Foreign Kelations of the Supreme 
Government of the Kepublic of Costa Rica. 



237 

No. 29. 
Execution of the Treaty of Limits. 

San Jose, January 25, 1861. 

Mr. Minister : In order to send back the courier ex pro- 
feso, whom you Avere pleased to send to this Republic, the 
President has directed me to tell you that, as he has to consider 
the contract of transit in compliance with the stipulations of the 
Canas-Jerez treaty, he has decided that the Costa Rican Com- 
missioner, who shall leave for your Republic within a very 
short period, should be the bearer of the said contract and 
of the decision thereon reached by this Government. 

With this I leave your favor of the 10th instant answered, 
and I subscribe myself your obedient servant, 

A. ESQUIVEL. 

To His Excellency The Minister of Foreign Relations of 
the Republic of Nicaragua. 



238 



No. 30. 

The Nicaraguan Chambers direct the Executive to comply with 
Art. VIII of the Treaty of Limits of April 15, 1858. 

National Palace, 
Granada, February 25, 1863. 

Mr. MiNiSTEE : The contract of interoceanic transit, cele- 
brated between the Government and Don Jos^ Eosa Perez, an 
authenticated copy of which I have the honor to accompany, 
together with the proposal upon the same subject made by 
Mr. J. E. EusseU, having been submitted to the Chambers for 
ratification, they were pleased to abstain from doing so, 

AND TO decide IN COMPLIANCE WITH ARTICLE VIII OF THE 
TREATY OF APRIL 15, 1858, BETWEEN THIS EePUBLIC AND YOURS, 
THAT THE SAID DOCUMENTS SHOULD BE RETURNED TO THE EX- 
ECUTIVE IN ORDER THAT THEY, AS WELL AS ANY OTHER PROPOSAL 
WHICH MAY BE MADE, SHOULD BE SUBMITTED TO THE GOVERN- 
MENT OF Costa Eica for the purpose of having its opinion 

ON THEM. 

In compliance with the above decision, I have the honor 
to submit to you the said contract and proposal for the 
knowledge of His Excellency the President, and hope you 
will be pleased to communicate to me in due time his opinion 
on them. 

I have the honor to subscribe myself your attentive 

servant, 

PEDEO ZELEDON. 

To The Minister of Foreign Eelations of the Supreme 
Government of Costa Eica. 



239 



No. 31. 



The strict cnvipUance with the treaty of limits demonstrated. 
— The Govern'inent of Costa Rica asks the rights vested in it 
by Article VI of a contract of transit to he expressly secured. 

To His Excellency the Minister of Foreign Relations of the 
Republic of Nicarag^ia. 
Sir : With your estimable note of the 25th of February 
ultimo this department has received a copy of the contract of 
transit celebrated between the Government of your Republic 
and Don Jose Rosa Perez, and also the subsequent proposal 
of Mr. John E. Russell, all of which has been transmitted to 
this Government in order that it may express its opinion, as 

PEOVIDED BY ARTICLE VIII OF THE TREATY OF LIMITS OF APRIL 

15, 1858. 

I hastened to give information of your note to His Excel- 
lency the President of the Republic, who, after having care- 
fully examined the documents referred to, has directed me 
to tell you in answer, as I have the honor to do, what follows : 

Considering that, according to the above-named stipulation 
of the treaty of April 15, 1858, the vote of Costa Rica is un- 
derstood to he advisory in all matters which do not directly af- 
fect the natural rights of this Republic, nor those which ema- 
nate from her sovereignty , or the absolute rights of property, or 
of the common use that it has over certain places at the port 
of San Juan del Norte^ the San Juan river, the Lake, and the 
Salinas Bay, my Government has deemed it advisable, and 
trusts that your Government will consider it in the same way, 
that the opinion or vote should be extended to some other 
clauses of the contracts, although they do not directly affect 
the territorial interests of Costa Rica. 

The spirit of Article YIII, and the reasons which were con- 
sidered when it was enacted, were, if we are not mistaken, to 
provide for the preservation of the common interests in all 



240 

cases which might produce complications with foreign conn- 
tries, since it cannot be doubted that such questions affect 
and endanger the two Eepublics, and much more so under 
the influence of the events which take place in other points 
of Central America. 

Under this point of view, and starting from the remark that 
the compact has been made with foreigners, whose claims, as 
shown by experience, may produce great evils and an inter- 
vention or invasion from abroad which would also threaten 
the neighboring countries, this Government is of the opinion 
that, in a contract of this kind, all stipulations which, by their 
consequences or by their language, may give occasion or pre- 
text to disputes and to exaggerated pretension must be care- 
fully avoided, and it is for this reason that I allow myself to 
call the attention of your Government to the following sug- 
gestions : 

* * * * * * * 

Aeticle 8. For tlie aake of clearness it seetns advisable to 
'maJce express mention of the Treaty of Limits of April 15, 
1858, saving the rights which Costa Rica has hy virtue of this 
treaty over the port of San Juan del Norte, the banks of 
the San Juan river, and the Salinas Bay, and the free 
navigation in all these waters, expressing that the exclusive 
privilege of the contractor will not prevent Costa Rica from 
establishing in the same waters steam navigation for the com- 
7nerce with the tributary rivers of its territory, which empty 
into the San Juan river and the lake, and from exercising 
territorial sovereignty in all cases in which the transit company 
should be called to exercise some act of administratio7i, use, or 
commerce within the territory of the said Republic, or subject 
to the laws and authorities of the same, as, for instance, in the 
case of Article 9. 

^ * * * * * * 

Aeticle 17. In consideration of the intimate relations of 
friendship which exist between this Eepublic and yours, and 
of the advantages that the enterprise of transit has to derive 



241 

from its frequent trade with the Costa Rican littoral, it seems 
to be equitable that the grantee should show in favor of citi- 
zens of Costa Eica, who would u.se for their commerce the 
means of transportation and communication of the company, 
and of those immigrants who would come in number of no less 
than 10 to settle in Costa Eica, the same liberality and the 
same franchises as granted to others. 

If this Government should determine to send European 
mail by the way of San Juan del Norte and Sarapiqui, the 
grantee will carry the said mail subject to the postal conven- 
tions in force and in accordance with Article X of the pro- 
ject of contract, and XI of the proposal of Mr. Eussell. 

The ideas which I have the honor to set forth, are also 
applicable to the proposals made by the representative of 
Messrs. James M. Brow and George G. Hobson, of New York, 
it being understood that, in case your Government gives pref- 
erence to the Eussell-Perez contract, it will be necessary to 
render the language of the provision clearer and fuller in or- 
der to mark well the principal points of difference between 
them. In everything else it is to be supposed that the pro- 
posing party will accept the same basis as adopted in the 
former contract. 

These are the remarks which this Government submits in 
regard to the contracts which the Nicaraguan Government 
has submitted to it ; and now the only thing left to me is to 
assure Your Excellency that the above remarks have been 
made in the best spirit and looking exclusively at the com- 
mon good. On the other hand, this Government is sincerely 
grateful for the sentiments which yours entertains in favor 
of the faithful and strict fulfilment of the compacts and for 
the confidence that it shows and the loyalty and righteous- 
ness of our relations with your Eepublic, our ally and 
sister. 

I take advantage of this opportunity to subscribe myself, 
Your very attentive servant, 

FEANCISCO M. IGLESIAS. 

Apeil 1, 1863. 
16 



242 



No. 32. 



The Government of Nicaragua asks for some forces to he situ- 
ated at Sarapaqui {a confluent of the San Juan river, on 
the 7'ight hank). 

Government House, 

Geanada, A/pril 23, 1863. 
Mr. Minister : Mr. Felix Belly, who has recommended 
himself so much by reason of his former action in Central 
America, has submitted to this Government a project of inter- 
oceanic transit and steam navigation in the interior of the 
Republic, an authorized copy of which I have the honor to 
enclose to you, /br the pxirposes of Article YIIl of the treaty 
of April \h,\m'^. 

With reference to your estimable despatch of the 1st in- 
stant, relative to the difficulties that lately arose between the 
Government and the Central American Transit Co., I must 
inform you, for the knowledge of your Government, that two 
agents of the said company, duly authorized by it to revali- 
date the contract which the Government had declared to be 
void, have just arrived in this city. Up to this date the Gov- 
ernment has not deemed it advisable to listen officially to the 
proposals that they have come to make, its reasons to do so 
being, 1st, that they have not yet paid the sums due to this 
Republic as tolls for passengers ; and, 2d, because the Gov- 
ernment thinks that, if not all, some, at least, of the officers 
of the company are accessories to the piratical and filibuster 
outrage perpetrated on the 7th instant at the La Yirgen 
Bay, on board the steamer San Juan, unfortunately in con- 
nivance with forces of Honduras and Salvador ; but, as in 
the difficult situation in which Nicaragua finds herself at 
present it is possible for the company to do some violence 
to the rights of this Republic, the Government may perhaps 
be compelled by pure necessity to enter with it into some 
equitable arrangement of temporary character, but by no 



243 

means final, which, while bridging over the difficulties of the 
present moment, enables the Government to do justice when 
the circumstances may be more propitious. 

I do not think it to be inopportune in vieiv of the current 
events to recommend to yoit and the Supreme Government of 
your country to cause some forces to he stationed at Sarapiqui 
to meet on that side any emergency that the same events might 
occasion there. 

I take advantage of this opportunity to reiterate to you the 
just considerations with which I subscribe myself, your very 
attentive and obedient servant, 

EDUAEDO CASTILLO. 

To the Hon. The Ministee of Foeeign Eelations of the Su- 
preme Government of Costa Eica. 



244 



No. 33. 

The Nicaraguan Chambers order one of the provisions of the 
treaty of limits of 1858 to he complied with. 

Aet. XI. Article XYII shall be stricken out, and the fol- 
lowing shall be inserted in its stead : 

" The present contract shall have no effect until accepted 
by Capt. Pirn, and until the Governments of Guatemala and 
Costa Rica shall have given their opinion upon it ; and for 
that purpose the time for the exequatur is extended sixty days 
longer." ' 

[Law of May 10, 1864. See pamphlet " Contrato de ferro-carril cele- 
brado el 5 de Marzo entre el Honorable Sr. Ministro de Hacienda Lie. D. 
Antonio Silva, y el Sr. Bedford, C. T. Pirn, capitan de la Marina Real 
inglesa, y ratificado por el Congreso de Nicaragua el 17 de Marzo de 1864. 
Managua. Imprenta del Gobierno, a cargo de A. Mejia, 1864. "] 



246 



No. 34. 



Validity and force of the treaty of limits. — Costa Rica does 
not accede to station forces at Sarajpiqui on the ground that 
it is unnecessary. 

Department of 
Foreign Kelations of Costa Kica, 

San Jose, May 26, 1863. 

Sir : In taking possession, ad interim, of tliis department, 
my attention was called to your note enclosing a copy of the 
project of tlie contract of transit submitted to your Govern- 
ment by Mr. Felix Belly, and making some suggestions in 
regard to the advisability that the Government of this Re- 
public should station some forces at Sarapiqui to meet there 
certain emergencies. 

In regard to the Belly contract, you will allow me to call 
the attention of your Government to the timely remarks made 
by our common Minister at Washington in regard to the ex- 
piration of the contract celebrated with the American com- 
pany in his despatch addressed to your department under 
date of the 28th of April, a copy of which was sent to this 
Government. 

My Government thinks, therefore, that, for the present, 
and notwithstanding the good antecedents of Mr. Belly, the 
most prudent thing would be to refrain from making any 
new contract of transit and wait until the differences between 
your Government and the North American Company, in re- 
gard to the validity or invalidity of the contract, are set- 
tled ; and this is all the more to be done, as it appears, 
according to the remarks already alluded to, that the proba- 
bilities of success are on the side of the American Company. 

I hope that you will not see in these suggestions any thing 
else than the desire of carrying such an important business 
to success, as well as the interest that my Government has. 



246 

in that your Government adopts the best means to terminate 
a matter which, like this, may have such important results. 

In view of this it would be useless to enter into the sub- 
stance of the Belly project, since this Government expects 
that yours will not take any step in the subject until all 
questions with the Transit American Company are settled. 
Therefore, my Gover7iment, reserving for that occasion to give 
the vote secured to it hy Article VIII of the treaty of April 15, 
1858, promises itself that your Government, before con- 
tracting new engagements, will do all that it can to bridge 
over the difficulties which it .now encounters. 

In regard to the suggestions made by you on the advisa- 
hility to station some forces at Sarapiqui, I am directed tore- 
ply that as, fortunately, the danger which threatened your 
Kepublic on that side has already disappeared, the necessity 
of sending there any forces has also ceased to exist. 

In transmitting the above to you I have the honor to sub- 
scribe myself, 

Your very attentive and obedient servant, 

JULIAN VOLIO. 

To His Excellency The Minister of Foreign Kelations of 
the Republic of Nicaragua. 



247 



No. 35. 

Costa Bica protests against the occupation and deterioration of 
the Colorado river. 

Depaetment of Foreign Eelations 

OF THE EePUBLIC OF CoSTA EiCA, 

San Jose, Jxdy 15, 1863. 

Sir : Tliis Government having been informed that the 
Transit Company in Nicaragua attempts to obstruct the Col- 
orado river which runs within the territory of Costa Hica, the 
President was pleased to direct the proper investigation to 
be made ; and, as it appears from the report of the special 
committee appointed for that purpose, that the engineers of 
the above-named company sounded and marked the Colorado 
river, and have already prepared four useless schooners which 
they intend to load with sand and stones and sink in the said 
river in order to close it, His Excellency has directed me to 
address your Government and ask of it to he pleased to pre- 
vent said purpose from heing accomplished, since it is so ex- 
tremely injurious to the interests of this country, and to give 
notice at the same time to the directors of the company afore- 
said, that he is determined to prevent cdl usurpation of the ter- 
ritory from heing consum^mated, and that the expenses to he in- 
curred in the repairing of the damages caused hy them hi the 
river ivill he charged to those who caused them to he incurred. 

With distinguished consideration, &c., 

JULIAN VOLIO. 

To His Excellency The Minister of Foreign Eelations 
of the Eepublic of Nicaragua. 



248 



No. 36. 

The Govermnent of Nicaragua recognizes that the Colorado 
river and its mouth are in Costa Rican territory and belong 
to Costa Rica, and canriot he closed against the vnll of the 
latter. 

Government House, 

Leon, July 21, 1863. 
Mr. Minister : Under this date I have written to the 
general agent of the company, and transmitted to the United 
States Minister residing in Nicaragua the following despatch : 
" The Department of Foreign Kelations of the Government 
of the Republic of Costa Bica has addressed to this Depart- 
ment, under date of July 15th, the following despatch : 
' This Government having been informed that the Transit 
Company in Nicaragua attempts to obstruct the Colorado river, 
which runs v)ithin the territory of Costa Rica, the President 
was pleased to direct the proper investigation to be made, 
and as it appears from the report of the special committee 
appointed for that purpose that the engineers of the above- 
named company sounded and marked the Colorado river, 
and have already prepared four useless schooners which they 
intend to load with sand and stones, and sink in the said 
river in order to close it. His Excellency has directed me 
to address your Government and ask of it to be pleased to 
prevent said purpose from being accomplished, since it is so 
extremely injurious to the interests of this country, and to give 
notice at the same time to the directors of the company 
aforesaid that he is determined to prevent all usurpat'ion in 
his territory from being consummated, and that the expenses 
to be incurred in the repairing of the damages caused by 
them in the river will be charged to those who caused them 
to be incurred. 

" 'With distinguished consideration I subscribe myself, 

your attentive and obedient servant, 

" ' J. VOLIO.' 



249 

" This Government had already received information that 
some old vessels had been bought by the company for the 
purpose of closing the mouth of the Colorado river, and 
noticed that this step would "cause great injury to the town 
of San Juan del Norte on account of the violent accumula- 
tion of water at the mouth of the San Juan river which 
would be produced by it. 

" On the other hand, the grant of transit made by the Gov- 
ernment to the companj^ is only temporary, because, in the 
opinion of the Government, the contract had expired ; and 
it cannot see without suspicion that the said company seems 
to be bent upon making permanent works which ought to 
have been accomplished during the time fixed in the contract, 
and which now cannot take place under the provisional grant 
afterwards made. 

" Under these circumstances I have been directed to tell you 

that THE CLOSING OF THE MOUTH OF THE COLORADO EIVEE, WHICH 
BUNS IN THE TERRITORY OF THE EePUBLIC OF CoSTA KiCA, WHICH 
RESISTS THAT CLOSING, CANNOT BE PERMITTED, and that UO othei 

permanent work in the territory of Nicaragua not within the 
permission lately granted of provisional transit, under the 
trust and confidence of the United States Minister, can either 
be allowed. 

" I have the honor to communicate it to you for your in- 
formation, and subscribe myself your attentive servant, 

"PEDEO ZELED6N." 

And I have the honor to transmit to you the foregoing 
despatch for your information, and in answer to your despatch 
of the 15th instant above copied, assuring you that my Gov- 
ernment will, on its part, always prevent any new work which 
may be attempted to be done upon the territory of your 
Republic. 

I subscribe myself, with all consideration, your very atten- 
tive and obedient servant, 

PEDRO ZELEDOK 

To the Hon. Minister of Foreign Relations of the Supreme 
Government of the Republic of Costa Rica. 



250 



No. 37. 

Nicaragua recognizes still more solemnly that the Colorado 
, river and the right ha7\k of the San Juan river are Costa 
Rican territory. 

Government House, 

Leon, July 28, 1863. 

Sir : In consequence of your estimable despatch No. 30, 
of the 15th instant, the proper communication has been ad- 
dressed to the general agent of the company, stating that the 
Government of Nicaragua does not permit him to do any work 
IN Costa Eican territory, as the right bank of the San 
Juan river at the confluence of the Colorado is, nor to do 
any other work of permanent character in pursuance of the 
grant made in favor of the company only temporarily, for no 
more than three months. The same communication was 
transcribed to the Minister of the United States, who has 
under his care and trust the property of the company. The 
Government of Nicaragua therefore, far from countenancing 
said work, relies upon Costa Rica to oppose it and prevent it 
from being consum.mated in its territory. 

I have the honor to say this to you in answer to your de- 
spatch above named, and subscribe myself your attentive 
servant, 

PEDEO ZELEDON. 

To The Minister of Foreign Eelations of the Supreme 
Government of Costa Eica. 



251 



No. 38. 

The Minister of Nicaragua in Washingtoji solemnly declares 
hefore the A merican. Government that the Republic of Casta 
Rica borders on the interior waters of Nicaragua^ and that 
its flag is the only one which, in union with the Nicaraguan 
flag, can float on said waters. 

Legation of Nicaragua, 

Washington, Oct. 7, 1863. 
Most Excellent Sir : 

■s- * •»• * * * * 

On the other hand, I can assure Your Excellency that the 
present administration of Nicaragua does not feel disposed 
to consent that any other flag, except her own and that 
of Costa Kica, as a bordering State, should float in the 
NAVIGATION OF HER INTERIOR WATERS, a7id that it Considers 
that the use of the flag of the United States made hy the 
Central American Transit Com.pany, and even hy the 
meanest laborers of the same, for the purpose of evading 
the orders and escajnng the authority of Nicaragua, is an 
unauthorized abuse, and that, it being persuaded that such 
an abuse can only produce complications, it will maintain 
its right, and will demand from the said company, or from 
any other company owing its existence to it, that it should 
root itself in the country and become, therefore, national- 
ized, according to the law of nations, and use pre-eminently 
the national flag, whenever one should be required within 
its jurisdiction, no other flag being admitted, except under 
exceptional circumstances and through courtesy. 

***** -x- * 

LUIS MOLINA. 

To His Excellency William H. Seward, 

c&c, (&c., (&c., Washington, D. C. 
[From "La Gaceta" of Nicaragua, No. 49, January 16, 1864.] 



252 



No. 39. 



The Government of Nicaragua approves the declaration of 
its Minister at Washington, and commends him for his 
zeal and fidelity. 

Department of Foeeign Eelations. 

In consequence of the Executive Decrees of November 
29th ultimo and March 2d instant, in which the contract of 
interoceanic transit was declared to be invalid, because the 
company had failed to comply with the indispensable condi- 
tions under which it had been granted, and in which the 
property of the said transit company, already belonging to 
Nicaragua by virtue of the stipulations of the same contract, 
was ordered to be taken possession of, — the company at- 
tempted to give rise to an international question, and by 
means of protests and affidavits of interested parties it at- 
tempted to surprise the Government of the United States, and 
falsely charged that when the said property was taken pos- 
session of, at the San Juan del Norte river and port, the flag 
of the United States hoisted upon each one of the company's 
establishments had been unworthily insulted. 

His Excellency the Minister of Nicaragua at Washington, 
having been informed of those steps, and being zealous of the 
honor of the Kepublic and of the good understanding between 
his Government and the Government of the United States, 
engaged himself at once in causing an investigation of the 
facts to be made and communicated to that effect with His 
Excellency the Secretary of State of the North American 
Republic. The satisfactory result of this action is shown 
by the following communications, which the Government 
deems it proper to publish since they do due honor to the 
good faith and loyalty which govern the relations of the 
United States with Nicaragua, and reflect no less credit on 
the zeal and fidelity of our Minister at Washington. 



263 

No. 40. 

The action of Don Luis Molitia, Minister of Nicaragua in 
W(fs/)ingtoji, is approved and commended. — Executive Or- 
• der rewarding the important services of Don Luis Mo- 
lina, Minister Plenipotentiary of Nicaragiia in the United 
States, and Mr. Mandeville Carlisle and Don Fernando 
Gnzman. 

The Government, 

In consideration of the extraordinary and important ser- 
vices of our Minister Plenipotentiary in Washington, Lie. 
Don Lnis Molina, rendered in the question lately raised by 
the Central American Transit Company in the United States ; 
and of the new contract which has been submitted to the 
approval and ratification of Congress ; and also of the en- 
lightened and valuable assistance rendered by Mr. Mande- 
ville Carlisle, a lawyer, in the framing of the said contract ; 
and also of the services rendered by Senator Don Fernando 
Guzman, in his trip to the United States for the same pur- 
pose, has decided to reward them as follows : 

1st. His Excellency Don Luis Molina, Minister Plenipo- 
tentiary of Nicaragua in the United States, will be paid the 
sum of $10,000 in American gold. 

2d. The lawyer, Mr. Mandeville Carlisle, will be paid $5,000 
in the same money. 

3d. Senator Don Fernando Guzman will be paid $2,500 in 
the same money. 

The above said sums shall be paid by the company, as 
agreed between it and Senor Molina, as soon as the contract 
is ratified and the ratification is made known to the company. 

Given at the National Palace of Managua on the 11th 
day of January, 1864. 

MAETINEZ. 

Countersigned : 

Zeledon, 

Secretary of Foreign Relations. 
[From the " Gaceta de Nicaragua," No. 49, January 16, 1864.] 



2S4 



No. 41. 

Validity and sirejigth of the Treaty of April 15, 1858. 

National Palace, 
Managua, January 11, 1864. 

To The Minister of Foreign Relations of the Supreme Gov- 
ernment of Costa Rica. 
Sir : In compliance with the provision of the treaty in 
force hetween this Republic and yours, and notwitlistanding 
the information which you have already received from our 
Minister in Washington, Lie. Don Luis Molina, that this 
step had been foreseen and anticipated, I have the honor to 
transmit to Your Excellency a copy of the convention lately 
concluded between the said Minister under the proper in- 
structions and powers from this Government, and the Presi- 
dent of the Board of Directors of the Central American 
Transit Company, by which all questions lately raised by the 
said company against the decrees of this Government, nulli- 
fying the old contract and taking possession of the steam- 
boats and other property which, under the same contract, 
had become the property of the Republic, have been settled 
and set at r^st. This contract has been ratified by the Com- 
pany, and is now subject to the approval of the Government 
and the ratification of Congress, to which the Government 
wishes to submit it, together with the vote or opinion of Costa 
Rica and Guatemala., in compliance with the respective 
treaties, as soon as it meets either in ordinary or extraordi- 
nary session. This Government cannot on its own part re- 
frain from expressing that it has seen with extreme satisfac- 
tion that by means of this contract it has obtained the most 
which it desired in its instructions, and that the loyalty, 
efficiency, and ability of the worthy son of Nicaragua, en- 
trusted with this negotiation and with the representation in 



255 

WasliingtoD of this Eepnblic and of the Kepublic of Costa 
Rica, have been demonstrated. 

I have the honor on this occasion of repeating to you the 
sentiments of esteem and consideration with which I sub- 
scribe myself your obedient servant, 

PEDRO ZELEDON. 



256 

No. 42. 

Yalidity and strength, of the Treaty of Limits. 

National Palace, 
Managua, March 19, 1864. 

To the Minister of Foreign Relations of the Supreme Govern- 
ment of Costa Rica. 

Sir : In compliance imth the provisioris of the treaty in 
force hetween this Republic and yours, I have the honor to 
transmit for the knowledge of your Supreme Government an 
authorized copy of the contract lately celebrated between the 
Secretary of the Treasury, as Commissioner appointed to that 
effect by this Government, and Mr. Bedford C. F. Pim, and 
approved by the Executive of Nicaragua, and ratified by the 
Legislative Power of the same, as shown by its text, which I 
do in order to obtain the vote or opinion, of your Government 
required by said treaty. 

With sentiments of high consideration, I subscribe my- 
self your attentive servant, 

E. CORTES. 



257 



No. 43. 

The Government of CosUi Rica orders an exploratio7i to be 
made of its lands horde/ring on the San Juan river. 

Department of Foreign Eelations op the 
Republic of Costa Rica, 

San Josts, May 26, 1864. 

Sir : About two months ago, a committee consisting of 
Senores Nieves and Luis Serrano, Juan Florentino and 
Anastasio Quesada, started from the City of Alajuela,/b;' the 
purpose of explonng in the neighborhood of the San Juan 
river the most convenient places to open a road between this 
Republic and Castillo Viejo. After waiting in vain for the 
return of that committee, information was received that when 
the said gentlemen reached Castillo Viejo they were arrested 
by the authorities of your Republic and taken prisoners to 
fort San Carlos. 

My Government hopes, from the high sense of justice of 
that of your country, that if the said gentlemen did not give 
any legal reason to be committed to prison the proper orders 
would be transmitted to the authorities of the fort to restore 
them to liberty and facilitate their return to their country. 

I avail myself of this opportunity to subscribe myself your 
attentive servant, 

J. VOLIO. 

To His Excellency The Minister of Foreign Relations 
of the Republic of Nicaragua. 
17 



258 

No. 44. 
New expedition to the banks of the San Juan river. 
Depaetment of Foeeign Eelations 

OF THE KePUBLIC OF CoSTA EiCA, 

San Jose, July 31, 1864. 

SiE : Following the suggestion that you were pleased to 
make in your estimable despatch of June 9th last, I have the 
honor to inform you of the approaching departure. of a new 
exploring expedition to the banks of the San Juan -river for 
the purpose of locating the shortest road between the interior 
of the Republic and the waters of that river. The said Com- 
mission has been provided with the proper passports. 

According to all information up to this time received, the 
opening of a road to the above-named point is a very easy 
matter, and it will considerably facilitate, to the common ben- 
efit of both Eepublics, their commercial relations. It is, 
therefore, to be expected that the Supreme Government of 
your country, if so disposed, will be pleased to direct the au- 
thorities of Castillo Viejo and Fort San Carlos not to op- 
pose any obstacle to any one who, for the purposes aforesaid, 
should approach those fortresses, whenever they exhibit 
their passports from this Government. 

Taking advantage of this opportunity, I have the honor to 

reiterate to you, &c., 

J. YOLIO. 

To His Excellency The Ministee op Foeeign Eelations of 
Nicaragua. 



259 



No. 45. 

Nicaragua acknowledges that Costa Rica borders on the San 

Juan river. 

National Palace, 
Managua, August 23, 1864. 
To the Hon. Minister of Foreign Relations of Costa Rica. 

Sir : I have had the honor to receive your estimable de- 
spatch of the 31st of July ultimo, in reference to mine of June 
last, and to a new exploring expedition sent hy your Rej^uhlic 
to the hanks of the San Juan river for the purpose of locating 
a convenient road. 

This road may be opened up to the San Juan river 
without going out of the territory of your republic, 
according to the treaty of limits between it and nic- 
ARAGUA ; but it may be also constructed, if shortness is 
principally consulted, in such a way that it touches the ter- 
ritory which this Republic reserved for itself for the proper 
defence of Castillo Yiejo and its free communication with 
San Carlos. In the latter case a previous arrangement would 
be necessary between the two Governments. 

It is for this reason that the arrival of the explorers to 
Castillo Viejo, or to any place whatever between it and San 
Carlos, cannot be but accidental ; and in order that it may 
not cause alarm in those garrisons I have sent a copy of this 
note to the respective commanding oflScers thereof, and I 
hope that you will be pleased to communicate the same to 
the contractor to avoid all mistakes. 

I am, with high consideration, your attentive servant, 

P. ZELEDON. 



260 



No. 46. 



Nicaragv a ■promises that the interests of Costa Rica will he 
respected^ and that its rights will suffer no detri'inent. 

National Palace, 
Managua, June 13, 1866. 

Mr. Minister : I informed His Excellency tlie President of 
this Republic of your despatch of May 25 ultimo, reiterating 
the statements of the communication addressed by your De- 
partment, under date of July 15, 1863, in relation to the 
work of the transit company, and for the purpose of pre- 
venting the latter from doing anything which might obstruct 
the Colorado river, or any of its branches, this reiteration 
being made because your Government has been informed 
that some work of this kind is now intended to be done by 
the above said company. 

This Department has no knowledge that any work is being 
done in the sense above indicated, and therefore, under this 
very date, it has asked the authorities at both the port and 
river of San Juan del Norte for the proper report. With the 
result thereof the proper answer will be given to your 
despatch of May 25 ultimo, above named ; but in the mean- 
time tKe Supreme Government of Costa Rica may rest as- 
sured that the Government of Nicaragua will respect the 
interests of Costa Rica, and will see that its rights are in no 
loay injured. This is the answer which I have been directed 
to give you, and I have the honor to reiterate to you the 
protests of my great esteem. 

R08ALI0 CORTES. 

To the Hon. Minister of Foreign Relations of the Supreme 
Government of the Republic of Costa Rica. 



261 



No. 47. 

Costa Rica protests against the deviation, of the waters of 
the Colorado river helonging to that liejjublic. 

Department of Foreign Eelations 

OF the Republic of Costa Rica, 

San Jose, June 26, 1866. 

Sir : The President of the Repubhc having been informed 
that the Central American Transit Company attempts to 
obstruct the Colorado river or some of its branches, all of 
which run in the territory of this Republic, in order to in- 
crease the vokime of waters of the San Juan river, and 
trusting in the promise that your Govern'ment m,ade to the 
Government of Costa Rica on July 21, 1863, in answer to 
the communication of the 15th of the same vnonih., protesting 
against that attempt, has been pleased to direct me to ad- 
dress your Government, as I have the honor to do, reiterating 
the statements of the said coinmunication of July 15, 1863, 
in order that, in due regard to the interests of both Repub- 
lics, your Government muy be pleased to interpose its authority 
to prevent the said company from carrying out its purpose 
of injuring the right bank of the San Juan river, belonging 
to Costa Rica, or the Colorado river, or any one its branches. 

Taking advantage of this opportunity, it is pleasing to me 
to offer you the assurances of my esteem, &c. 

J. YOLIO. 

To His Excellency The Minister of Foreign Relations of 
the Republic of Nicaragua. 



262 



No. 48. 

Despatch stating that a sanitary cordon of Costa. Rica has 
trespassed on the Nicaragxian frontier as established hy the 
treaty of 1858. 

Office of the Prefect 

of the southeen department, 

RiVAS, January 8, 1867. 
lo the Hon. Secretary of State 

of the Government of Nicaragua. 
Sir : I have the honor to report that the Government of 
Costa Eica moved, no doubt, by the information that cholera 
had broken out in this Republic, has ordered a sanitary cor- 
don to be stationed on the frontier. But in doing so the 
Costa Rican Government has invaded the territory of this 
Republic by establishing a garrison at the place named El 
Naranjito, which is two leagues, or perhaps more, distant 
on this side from the dividing line lately* agreed upon by 
the two Republics. 

This, in my judgment, is an attack upon our property which 
may create great difficulties, and for this reason I report it 
to Your Excellency, in order that Your Excellency may take 

such action as proper. 

MAXIMO ESPINOSA. 



263 



No. 49. 



Nicaragua asks that a sanitary cordon he moved back to the 
frontier established by the Treaty of 1858. 

[seal]. National Palace, 

Managua, January 12, 1867. 

Mr. Minister : I have the honor to enclose an authorized 
copy of a communication sent to this Department by the Pre- 
fect of the Southern Department. You will see by it that the 
officers commanding a picket belonging to the sanitary cordon 
established by your Government have trespassed upon the di- 
viding line by situating their forces in Nicaraguan territory. 

My Government hopes that yours will be pleased to issue 
the proper orders for the purpose that the above-named forces 
vacate the points which at present they occupy in this country 
and station themselves on Costa Rican soil. 

No doubt is entertained that such orders will be issued with 
the promptness required by the case, because it is not to be 
presumed, in view of the sense of justice of your Government 
and of the good relations which exist between the two coun- 
tries, that there is any desire to do any hostile act against 
Nicaragua. 

With the assurances of my greatest esteem and considera- 
tion, I subscribe myself your attentive servant, 

ROSALIO CORTES. 

To the Hon. Minister of Foreign Relations of the Supreme 
Government of Costa Rica. 



264 

No. 50. 

The Government of Costa Rica consents to move hack its sani- 
tary cordon to a point indisputably located within the limits 
estahlished hy the treaty of April 15, 1858. 

Department of Foreign Relations of Costa Rica, 

San Jose, January 25, 1867. 

Sir : I submitted to the President of the Republic your 
attentive official communication of the 12th instant, enclos- 
ing an authorized copy of the letter addressed to you on the 
8th instant by the Prefect of the Southern Department, and 
stating that the officer in command of the sanitary cordon 
of this Republic trespassed upon the dividing line in sta- 
tioning forces on Nicaraguan territory, and that your Govern- 
ment expects from the sense of justice of my Government 
and the good relations existing between both countries that 
the proper orders should be given to the above-named forces 
to vacate the aforesaid territory. In consequence thereof I 
have been directed to give you the following answer : 

Although the place where the Governor of Liberia sta- 
tioned the first sanitary cordon is not shown to belong to the terri- 
tory of Nicaragna^ because the dividing line betxceen the two 
Republics is not yet actually drawn there, still it was sufficient 
that your Government should deem that point to be included 
within the limits of your Republic, to make my own Govern- 
ment, without entering into the merits of the question and 
for the sake of harmony between one and another people 
and of the sincere friendship of both Governments, to cause 
the sanitary cordon to be, as it has been, immediately with- 
drawn and established only on such places as indisputably 
belong to the territory of Costa Rica. 

The wishes of your Supreme Government are thus complied 
with ; and, in transmitting to you this fact, I reiterate, &c., 

J. YOLIO. 

To His Excellency The Minister of Foreign Relations of 
Nicaragua. 



265 



No. 51. 



Costd Rica shows her dispositio)) to enter into nrrdngewents with 
Nicaragua to determine hy m.utaal agreement what should 
be done in regard to comviunications on the Atlantic side. 

Depaetment of Foreign Kelations of Costa Rica, 

San Jose, November 25, 1868. 

Sir : This Department has received, toget]ier with your 
important despatch of the 7th instant, an authenticated copy 
of the report of the civil engineer of your Republic v)ho 
made the survey of the San Jaan and the Colorado rivers, and 
in due conformit}^ with the wishes of your Government, I 
now transmit to you a true copy of the report upon the same 
subject which has been made by the engineers of this Re- 
public. 

You will see that both reports entirely agree upon the 
principal fact, and consider that San Juan is the place where 
a good port can be made with less cost and more advantages. 

My Government will pay the greatest attention to such an 
important matter, and will readily enter into any arrange- 
ment which may be proposed to it beneficial to both Re- 
publics. 

I reiterate to you the assurances of true esteem with which 
I am, &c., 

A. ESQUIVEL. 

To His Excellency The Minister of Foreign Relations of 
Nicaragua. 



266 

No. 52. 

Contract Ay on- Chevalier. — Costa Rica is an essential, party 
to the interoceanic canal. — The contract will he void if Costa 
Mica does not accept it. — Costa Rica will l)e invited to make 
in favor of the grantee such concessions in the Costa Rican 
territory as Nicaragua makes in her own. 

The President of the Republic to its inhabitants., greeting : 
Know ye, that Congress has decreed as follows : 
The Senate and Chamber of Deputies of the Republic of 

Nicaragua 

Decree. 

Article only. The contract of the Maritime Interoceanic 
Canal, celebrated in Paris on the 6th of October, 1868, by 
the Minister of Foreign Relations, Lie. Don Tomas Ayon, and 
Monsieur Michel Chevalier, a French subject, consisting of 
59 articles, and an additional one, whose tenor is as follows, 
is hereby ratified in all its parts. 



LIII. 

The Republic of Nicaragua 6mrt?s herself to nnnke every pos- 
sible effort to obtain as early as practicable the adherence of 
the Republic of Costa Rica to the present convention, in such 
a way that Costa Rica guarantees in favor of the grantee and 
in her own territory, and in all that belongs to her, the ad- 
vantages stipulated by Articles YI, XIY, XV, XVI, XVII, 
XIX, and XX ; the latter in combination with the XXI, XXIV, 
and XXV ; the latter in combination with the XXVI, XXVII, 
XXVIII, and XXIX; the latter in combination with the 
XXX, XXXI, XXXIII, XXXIV, XXXV, XXXVI, XXXVII, 
XXXVIII, and XXXIX ; the latter in combination with the 
XL, XLI, XLII, XLIII, XLIV, XLV, XLVI, XLIX, L, and 
LII, and also LVII, LVIII, and LIX foUowing. 



267 
LIV. 

The Republic of Costa Rica will be invited to treat the 
company in the same way as the Republic of Nicaragua does 
by the present Convention. 

LV. 

The Republic of Nicaragua reserves for herself to enter into 
arrangements with Costa Rica for the purpose of stipulating 
the advantages which Costa Rica will derive from adhering 
to the present Convention. 

LVI. 

If the lie^niblic of Costa Rica should refuse her adherence^ 
the present Convention shall he ipso facto annulled. 

****** -x- 

MICHEL CHEVALIER, 
TOMAS AY6N. 

Given at the Hall of Sessions of the Senate, Managua, 
March 2, 1869. — P. Joaquin Chamorro, President; Vicente 
Guzman, Secretary ; Pio Castellon, Secretary. 

To the Executive Power. Hall of Sessions of the Chamber 
of Deputies, Managua, March 15, 1869. — S. Morales, Presi- 
dent ; P. Chamorro, Secretary ; Miguel Robledo, Secretary. 

Therefore, let it be executed. 
Government House, 

Managua, March 15, 1869. 

FERNANDO GUZMAN. 
A. H. RivAS, 

Secretary of the Interior. 



268 



No. 53. 



Editorial of the Nlcaraguan " Gaceta'''' on the Ay on- Cheva- 
lier canal contract. — The San Juan river explicitly de- 
clared to he (1869) in great part the frontier of Costa Rica. 
— The adherence of Costa Rica to the contract recognized to 
he indispensable. — Costa Rica is asked to grant in her 
territory what Nicaragua has granted i7i hers. — All of 
this presupposes the acknowledged validity of the treaty 
of limits. 

" Gaceta."" 

The Ganal Conteact and the Eepublic of Cost Eica. 

The contract for the canalization of the Nicaraguan isthmus 
is already an accomplished fact. * * * 

It is indubitable, therefore, that our canal contract has been 
made under the most favorable auspices. 

The only thing that now remains to he done is that the Re- 
public of Costa Rica co-operates in its accomplishment. 

By Article XLIII of the canal contract the Republic of 
Nicaragua binds herself to make every ■p)ossihle effort to obtain 
as early as p>racticahle the adherence of the Republic of Costa 
Rica to the Convention., in order that it may guarantee in favor 
of the grantee, within its own territory and in all that cor- 
responds to it, the advantages that Nicaragua has granted. 

And, in truth, it is so demanded by the topographic situa- 
tion of the San Juan river and of the Lake of Nicaragua, which 

IN A GEEAT PAET SEEVE AS A DIVIDING LINE BETWEEN THE TEEEI- 
TOEY OF THE TWO EePUBLICS. 

Would our neighbor be willing not to oppose any difficul- 
ties to the realization of a project which has occupied us for 
so many years ? Would it be willing to concur in this 
colossal work, which is of paramount necessity, and share be- 
sides the advantages which the same offers to it ? 



269 

We do not doubt that tlie two Republics, whose citizens 
have often shed their blood in defence of the Central Ameri- 
can independence on the fields of Eivas in 1856, will unite 
themselves to-day and co-operate in the opening of the canal, 
which offers such a vast horizon of prosperity for the two 
people whose interests are completely identical in this case. 

If Costa Eica has to make concessions it has also to en- 
joy IN ITS OWN TEKRITORY the same advantages as the vessels 
and commerce of Nicaragua, as is provided by the additional 
article of the Convention. 

We trust that the sympathy and good sense of our neigh- 
bor, looking at things from the true stand-point, will adhere 
to the above said Convention, and we trust besides that the 
ability and wisdom of Don Mariano Montealegre, Envoy Ex- 
traordinary and Minister Plenipotentiary of Nicaragua, will 
secure the success of the mission entrusted to him by 
obtaining the adherence of the Costa Eican Government to 
the Articles of the Canal Convention which concern it. 

Otherwise Article XL VI of the Convention reads clearly 
and inexorably : "If the Eepublic of Costa Eica should 

REFUSE HER ADHERENCE THE PRESENT CONVENTION SHALL BE, 
IPSO FACTO, ANNULLED." 

Would this be the end of so many discussions, so much 
labor, so many expectations and hopes ? That is not possi- 
ble. 

[From "La Gaceta de Nicaragua," No. 17, April 24, 1869.] 



270 



No. 54. 

The Government of Nicaragua asks the Government of Costa 
Rica to request the National Constituent Convention to 
modify certain articles of a treaty hetween the two Repub- 
lics for the digging of an interoceanic canal. 

San Jose, September 2, 1870. 

Sir : Senor Don Alejandro Cousin delivered to me your 
despatch of the 20th of August, asking this Government to 
request the National Constituent Convention to modify Arti- 
cle XXXYI of the Convention between Costa Eica and Nic- 
aragua for the opening of an interoceanic canal, so as not to 
deprive the company of the right of appointing arbitrators 
for the settlement of the differences which may arise on this 
subject. 

The National Convention organized itself on the 8th of 
August, and adjourned on the 25th of the same month. 

It will reconvene as soon as the committee in charge of 
framing a project of constitution terminates its labors. 

I can assure you that as soon as the Legislative Power re- 
convenes this Government will immediately make the request 
referred to by you. 

I am, your very attentive servant, 

MONTUFAR. 

To His Excellency The Minister op Foreign Relations of 
the Republic of IsTicaragua. 



271 



No. 55. 

Project of a road from San Josede Costa Rica to San Carlos 
for the. export of coffee through San Juan del Norte. — 
Costa liiea earnestly invited to co-operate iii the restoration 
of the port of San Juan by uniting the waters of the Col- 
orado river with those of the San Juan river. 

The " Gaceta." 

In number 41 of the " Debate," issued on the 28th of last 
month, an article full of important statements began to be 
pubhshed, showing the advisability that some means of com- 
munication towards the Atlantic should be opened through 
the route northwest of San Carlos. 

The writer, resting on good calculations and on conclusive 
proofs, demonstrates that a road in that direction would offer 
Costa Rica considerable advantages, and facilitate the trans- 
portation of coffee from the places where it is raised to the 
port of embarkation. 

We have noticed before this time the efforts made by the 
Government of that Eepublic to open a road to the northeast 
through the difficult and costly route of Limon. The esti- 
mates made for that enterprise contain, as was natural, heavy 
items, capable to be increased indefinitely, for the frequent 
and perhaps unceasing repairs which the road required, be- 
cause it was to be built upon muddy ground, exceedingly 
hilly, and totally unprovided with the material necessary to 
do substantial work. 

The Government of Costa Eica, having fixed the whole of 
its attention to finding the way of conquering the difficulties 
encountered by that enterprise, had not been able to notice 
that the San Carlos route was more accessible, more conve- 
nient to the commerce and agriculture of the country, more 
promising of good results for the section crossed by it, and 



272 

more profitable to all tlie localities where coffee is cultivated. 

* * * 

Coming back from our digression to tlie project of a 
northern road initiated by " El Debate," we can assure, 
upon inspection of the facts furnished by different surveys 
made at different times, both on the land as well as on the 
water-side, that the San Carlos route will be the easiest, the 
less costly, and the nearest to the principal points of the Re- 
public . 

From San Jos6, which we consider as the central point, to 
Penablanca, where the San Carlos river is reached and 
where a port can be established under favorable conditions 
of salubrity and sufficient area for a town, there are only 
eighteen leagues ; from there to the confluence of the San 
Juan river there are no more than twenty leagues, counting 
in this measure the windings of the stream ; and from there 
to the port of San Juan del Norte there are eighteen more 
leagues ; so that between this port and San Jos^ there is 
a total distance of fifty-eight leagues. This is much less 
than the distance between the same port and the Nicaraguan 
towns on the lake shore ; since from San Juan del Norte to 
Rivas there are sixty-three, and to Granada sixty-seven, 
leagues. To the capital there are seventy-eight ; that is to 
say, twenty leagues more than the distance to the capital of 
Costa Rica. It is, therefore^plam that Costa Rica Has more 
interest than Nicaragua and is more henefited than she hy the 
improve7nents of the San Jua7i 'river and of the port of the 
same name. 

The San Carlos river does not offer any obstacle of any 
kind, but, on the contrary, presents great facilities to navi- 
gation after Penablanca is reached ; because, as it has no 
other tributaries than the Arsenal river, the Rio Blanco 
river, and a few streams of small importance, carries sufii- 
cient water of its own to render the danger of scarcity or 
dryness in summer rather remote. The bottom of the river 
is generally sandy, at least in the navigable part, and it has 



273 

no rapids nor rocks obstructing the way ; and, if it is true 
that there are in it some irregular currents, still this does not 
constitute any danger nor difficulty for steamboats properly 
built for that purpose. The banks on both sides are high, 
showing an average altitude of from ten to twenty feet — suf- 
ficient to prevent overflows. The adjoining lands are en- 
dowed with a wonderful fertility for the cultivation of sugar- 
cane, indigo, cocoa, and all the fruits of our climate. 

The vmjyroveinents in the port of San Juan del Norte and, 
in the lower part of the river, sufficient to overcome all ob- 
stacles, absolutely depend upon the restoration of the branch 
named Colorado river. The incorporation of one with the 
other, wholly or in part, will not cost much. Some esti- 
mates have been made of the cost which such a work would 
require, and the amount reached scarcely exceeds $60,000 or 
$80,000. The conveniences of the port are proverbial, even 
now% and certainly will increase with the increase of the water 
and the restoration of the port to the condition in which it 
was a few years ago. * * * 

It would, therefore, be desirable that the two Governments, 
listening to the voice of coinmon interest, shotdd enter into the 
proper arranger)ients to improve, at the cost of both Republics, 
the port of San Juan del Norte and the lower ptart of the river. 
A great writer of the last century said that the utility of one 
nation depended precisely upon the ruin or retrograde con- 
dition of its neighbor ; but he was execrated by his contem- 
poraries for being the propagator of pernicious maxims. Will 
it be possible for any one in this century to think that it is 
right to lessen the advantages of a neighbor, even to the det- 
riment of his own interest ? Let us hope that there is no such 
person, and that the Governments, laying aside all narrow- 
minded sentiments, will combine to promote the prosperity 
of both nations. 

[From the " Gaceta de Nicaragua," No. 38, September 17, 1870.] 
18 



274 



No. 56. 



Remarks made hy the Oovernment of Costa Mica to the 
Government of Nicaragua when the latter submitted to 
the Nicaraguan Congress its so-called doubts in regard to 
the validity of the treaty of limits of 1858. 

[seal]. San Jose, February l^i, 1870. 

SiE : I have read with deep sorrow that part of the mes- 
sage addressed by Your Excellency to the Nicaraguan Con- 
gress, wherein the treaty of limits between Costa Kica and 
Nicaragua of April 15, 1858, is discussed. 

That passage of Your Excellency's message reads literally 
as follows : 

" Article II of the Constitution of November 12, 1838, 
which was the one in force at the time in which the treaty 
of limits was adjusted, declared that the territory of the 
State of Nicaragua was exactly the same as the territory 
which the Province of Nicaragua had been. This Province, 
before the independence, embraced the whole territory of 
Guanacaste. 

"Article 194 provided that, for the amendment of or addi- 
tion to any article of the Constitution, it should be required 
among other formalities that the said amendment or addition 
should be approved by the two-third vote of the Senators 
and Members present, and that, after securing this vote, 
neither the amendment nor the addition should be considered 
as forming a part of the Constitution, as all laws on limits 
are, until sanctioned by the next Legislature." 

" The same formalities are established for similar cases by 
Article 103 of the present Constitution," 

"The treaty of limits, in which Nicaragua, abrogating 
Article II of her Constitution, generously ceded to Costa 
Eica a large portion of territory, which she has possessed 
quietly, both before and after the independence, required for 



275 

its validity to have been sanctioned by the next Legislature. 
It was approved by the Assembly of 1858 ; but that was not 
enough. It ought to have been approved, also, by the Con- 
gress of 1859, because the two Legislatures were considered 
hj the Constitution as if they were two co-ordinate legislative 
bodies, the approval by the first being only of initiative 
character and lacking legal force without the approval of 
the second, exactly in the same way as the action of one 
Chamber in the enactment of a law means nothing if the 
other Chamber does not act accordingly.'' 

" The said formality having been omitted, the treaty of 
limits lacks legal force, and therefore Costa Kica has no right 
to demand its execution, because, according to the principles 
of the law of nations, treaties are void and inoperative through 
the omission of au}'^ requisite which, according to the Con- 
stitution of the State, was necessary for its consummation." 

" The Government of Costa Rica has acknowledged that 
this is the condition in which the above said treaty finds it- 
self, because in Article VI of a convention made on the 12th 
of July, 1869, between the Plenipotentiaries Don Mariano 
Montealegre and Don A. Jimenez, about the cession of the 
waters of the Colorado river for the purpose that they should 
be thrown into the San Juan, a convention of which, in due 
time, I gave you the proper information, it asked Nicaragua 
to ratify the treaty of limits with Costa Rica, and to agree to 
submit to the arbitration of the Government of the United 
States of North America all questions arising out, either of 
the said treaty, or of the execution of the convention just 
spoken of." 

" Costa Rica, in asking Nicaragua to ratify the treaty of 
limits in which the latter State ceded to the former a large 
extent of its territory as preliminary for allowing the waters 
of the Colorado river to be thrown into the San Juan, looked 
as if pretending that Nicaragua first should give it the whole 
thing, and subsequently take back a portion of it. It is 
useless to repeat here the obvious reasons which you had in 
view for rejecting the convention." 



2T6 

" In order to avoid perplexities in tlie course of this busi- 
ness, the Executive requests your Honorable Body to define 
well the rights of the Eepublic in the matter of limits with 
Costa Rica before undertaking works or devising plans for 
the improvement of its ways of communication on the north- 
ern side." 

This grave subject being now under discussion in the 
Chambers of your Eepublic, I think it my duty to present 
to Your Excellency some remarks, and request that, if deemed 
proper, they be transmitted to the Congress of Nicaragua 
for their consideration. 

The Constitution of your Republic, promulgated on the 
12th of November, 1838, as Your Excellency yourself recog- 
nizes, did not say anywhere that the territory of Guanacaste 
was part of Nicaragua. It confined itself to indicate that 
the territory of the State was the same as belonged to it 
when a Province. 

In reference to this I must state that Guanacaste, in the 
time of the Spanish Government, always was under the im- 
mediate jurisdiction and control of Cartago ; and that the 
Spanish Cortes, when they promulgated the Constitution of 
1812, decided that Guanacaste should be incorporated in 
Costa Rica for the purposes of electing deputies both for 
the Cortes and for the provincial deputation or assembly. , 

I must say further, that according to the charter of the 
Colony of Costa Rica, the King of Spain appointed Don 
Diego Artieda y Chirinos to be the first Governor and Cap- 
tain-General of this Province, marking as limit for the same 
the San Juan river on the Atlantic. 

But there are other conclusive reasons founded upon doc- 
uments of subsequent date in support of the treaty of limits. 

It was approved by the Government of Costa Rica and 
Nicaragua. 

It was ratified by the Congresses of Costa Rica and Nic- 
aragua. 

The ratifications of the treaty were duly exchanged, and 



277 

the treaty was promulgated in both Republics as the law of 
the laud iu regard to limits. 

Thirteen rears have elapsed since that publication, and all 
the Legislatures which have met during that period have 
looked at that treaty as the basis of the relations between 
both countries. 

The Legislature of Nicaragua approved the treaty of peace 
and amity concluded on the 30th of July, 1868, taking 
for granted that the limits between both Republics were 
settled. 

The present Constitution of Nicaragua, subsequent in date 
to the treaty, says, in its Article I, that the laws on limits 
make a part of the Constitution. 

The treaty herein referred to is aNicaraguan law on limits, 
and a law of the highest importance. Therefore it is an in- 
tegral part of the Constitution of Nicaragua, according to its 
own literal language. 

Under these circumstances, the august Chambers of your 
Repubhc would need, before declaring the treaty of limits 
to be invalid, to be invested with all the power which Your 
Excellency says to be indispensable to amend the Constitution 
of your country, in addition to all other circumstances pre- 
scribed by international law to invalidate a treaty signed, ap- 
proved, ratified, exchanged, promulgated, and executed during 
13 years. 

Your Excellency refers to a project of Convention cele- 
brated on the 21st of Jtily, 1869, between the Plenipoten- 
tiaries Don Agapito Jimenez and Don Mariano Montealegre. 

Article VI of the said project alluded to by Your Excel- 
lency says : " The Government of Nicaragua ratifies by this 
convention the treaties which it has celebrated in regard to 
limits with the Government of Costa Rica." 

I do not understand what was the reason why the Costa 
Rican Plenipotentiary acceded to subscribe to such an arti- 
cle, included in a project, which was relative to a matter en- 
tirely independent of all question of limits ; but I under- 



2T8 

stand very well that the said article does not prove at all 
that the treaty of limits is not valid. 

Senor Montealegre, Plenipotentiary of Nicaragua, came to 
suggest that Costa Rica should allow the waters of the Colo- 
rado river to be carried into the San Juan. 

He recognized the validity of the treaty of limits, and 
requested that the waters of the Colorado river be granted to 
his country, and the request was granted by the Costa Bican 
Plenipotentiary, who assented, furthermore, to the enactment 
of Article VI above copied. 

But the said project of convention, including its Article VI, 
was not ratified by the Congress of this Republic ; and, there- 
fore, it has no more force and strength than if it were simply 
blank paper. 

To have some right to argue against Costa Rica on the 
ground of the said convention, it would be necessary for the 
convention to have become a law, which never happened. 

Now, by virtue of the discretionary faculties vested in the 
President, His Excellency has the power to ratify public 
treaties ; but His Excellency has not only refused to ratify 
the convention referred to, but has been pleased besides to 
decree that it is invalid and void. 

Be pleased to accept the consideration with which I have 
the honor to assure Your Excellency that I am your most 
attentive servant, 

MONTUEAR. 

To His Excellency The Minister of Foreign Relations of 
Nicaragua. 



279 



No. 57. 

ReriiarJes of the Government of Casta Rica in refu.tation of 
the (louhts entertained hy the Govermnent of Nicaragua on 
the validity of the treaty of limits. 

[seal]. San Jose, July 22, 1872. 

Sir : The estimable despatch of Your Excellency, addressed 
to me on June 30, is now in my possession. 

Your Excellency is pleased to set forth in it that it is not 
the intention of your Government to move for an immediate 
decision in the matter of limits, but to explain what the Gov- 
ernment of Nicaragua has considered to be an undue and 
wrongful act of an officer of this Republic. * * * 

Your Excellency goes on repeating what has been said in 
support of the opinion that the treaty of limits is illegal ; in- 
sists upon declaring that what is called " Desaguadero " in 
the Royal Cedula of Aranjuez is not the San Juan river ; 
affirms that several Cedulas and geographers, and tradition, 
show that they are two different things ; says that the grant 
made by the King of Spain was on condition of conquering 
the territory spoken of in the Royal Cedula, and that no one 
will dare to maintain that the conquest was ever made, and 
ends by asking a frank explanation in regard to the action of 
the chief of the customs service. 

Your Excellency will allow me to say that in your despatch 
of May 22 you did not confine the discussion to the matter of 
customs service alone, but extended your remarks to some- 
thing else. Your Excellency said that the statu quo ought to 
be preserved until the treaty of April 15, 1858, is declared 
to be vahd or invalid ; and further said that this statu quo 
must be understood as follows : Nicaragua exercising the free 
navigation of the Colorado river and using all the places 
yielded to Nicaragua by the treaty of limits, so that the statu 
quo, according to Your Excellency, is and must be that 



280 

Nicaragua possesses the whole thing as absolute lord and 
master. 

Your Excellency expressed in the same despatch that, 
after the validity of the treaty is admitted, it will be neces- 
sary to proceed to make the survey, and added that Nicara- 
gua had granted Costa Rica a vast territory adjoining the 
right bank of the San Juan river. 

In the presence of these statements it was necessary for 
my Government to say all that is contained in the note of 
June 10th. 

Even in this despatch I cannot refer exclusively to the 
customs service question, because Your Excellency does not 
do so, but insists on discussing the question of limits and 
the validity of the treaty of April 15, 1858. 

In this respect Your Excellency will allow me to say that 
historian Juarroz describes the limits of the Nicoya district 
as follows : 

" It is bounded on the west by the ' corregimiento,' or 
'Alcaldia Mayor ' (territory under the jurisdiction of a mayor 
or local governor) of Sutiava ; on the south by the Pacific 
Ocean ; on the northeast by the Lake of Nicaragua ; and on 
the east the boundary runs along the limits of Costa Rica." 

The same thing says Alcedo in his Dictionary published 
in 1788. 

The Most Illustrious Senor Don Francisco de Paula Garcia 
Pelez states in his " Memoirs " that the kingdom contained five 
Governments, namely, Guatemala, Nicaragua, Costa Rica, 
Honduras, and Soconuzco ; and nine "Alcaldias Mayores," 
namely, San Salvador, Chiapas, Tegucigalpa, Sonsonate, Ve- 
rapaz, Suchitepiquez, Nicoya, Amatique, and the mines of 
Zaragoza. 

In the well-known " Report " on the Kingdom of Guate- 
mala, made by Engineer Don Luis Diez de Navarro, in 1754, 
the following words are found : " On the 19th of January, 
1744, I reached the mountain of Nicaragua, which is a very 
rugged one, where the province of that name ends, as 



281 

I have explained in ray first trip, and I entered the jurisdic- 
tion of Nicoja, which, althoiigh an 'Alcaldia Mayor,' separate 
from the Government of Costa Rica, is reputed to belong to 
the latter province. 

The same author further says as follows : " The capital of 
said province (Costa Rica) is the city of Cartago, and its 
boundaries and jurisdiction are as follows : On the Northern 
Sea from the mouth of the San Juan river to the ' Escudo ' 
of Veragua in the Kingdom of TierraFirma." 

The La Flor river was the dividing line between Sutiava 
and Mcoya, as shown by the land titles and by the practice 
observed from time immemorial in the administration of the 
local government of both districts. 

Three years after the independence Nicaragua had to suf- 
fer the scourge of civil war, because of the disagreement 
which has afflicted her so much between Leon and Granada, 
Managua and Masaya. 

Costa Rica, on the contrary, constituted itself peacefully 
and with the greatest tranquility. 

The Nicoya district did not want to follow the fate of Nic- 
aragua, and be agitated by discord, but decided to belong to 
Costa Rica ; and Costa Rica accepted this decision in 1825, 
with the consent and approval of the Federal Congress. 

When the Central American Union was dissolved each 
state retained the limits which it had at that moment, and 
this is the iiti possidetis on which their rights rest at present. 

In consequence of this, Nicoya formed an integral part 
of Costa Rica until the year 1858, in which the treaty of 
limits was signed. 

By this treaty Costa Rica receded from the La Flor river 
and withdrew as far as the Salinas Bay. 

The line which the treaty guarantees for Costa Rica is one 
which rests upon the firm ground of possession for many 
years. 

Furthermore, in the apportionment of the foreign debt, the 
share of Costa Rica included the portion which corresponded 
to the territory now spoken of. 



282 

Costa Rica also recognized such a portion of the colonial 
domestic debt as corresponded to the same territory. 

The Aranjuez Cedula describes the limits of Costa E-icaby 
saying, from the mouth of El Desaguadero to Veraguas. 

Your Excellency says that the San Juan river is not the 
same stream called Desaguadero in the Cedula referred to. 
But in the despatch of the 10th of June I had the honor to 
tell Your Excellency what follows : 

" It is very important for all nations to fix their limits with 
foreign countries, and the dividing lines between their prov- 
inces. For this purpose, whenever practicable, ranges of 
mountains, rivers, lakes, or seas are always looked for. In 
the councils of the King of Spain this well-known truth was 
taken into consideration, and in marking the limit between 
Costa Rica and Nicaragua the most striking and natural pos- 
sible line, that is, the San Juan river, was chosen." 

To this remark Your Excellency has not been pleased to 
give any answer. 

According to historian Juarroz, the southern bank of the 
San Juan river was reputed to belong to Costa Rica, and this 
proves that the San Juan river is the same which was for- 
merly called Desaguadero. 

The ancient names of the rivers which empty into the San 
Juan on the Costa Rican side prove the same assertion. 
The river which runs near Castillo Viejo is called on the old 
maps " Rio de Costa Rica." 

To maintain that the " Desaguadero " is not the same 
San Juan river, Your Excellency has referred to " Cedulas," 
geographers, and tradition ; and Your Excellency will allow 
me to say that neither those Cedulas have yet been produced, 
nor the names of those geographers have been given. 

In regard to tradition. Your Excellency knows very well 
that it is founded on a chain of competent writers, who, for an 
uninterrupted series of years or centuries, record as certain 
some facts witnessing an uniform belief in their existence. 

I do not know of any such series of writers serving as 



' 283 

foundation to the tradition which Your Excellency speaks 
of ; and on the contrary the writers from whom I have 
alloAved myself to quote demonstrate not only that there 
is not the absolute agreement of belief in favor of the opin- 
ion which Your Excellency maintains, but that on the con- 
trary there is a current of belief in a sense entirely opposite. 

Your Excellency says that the grant made by the King of 
Spain, in favor of Artieda Ghirinos, was on condition that 
he should conquer all the territory spoken of by the 
Aranjuez Cedula. 

But, Mr. Minister, Pedrarias had began the conquest of 
that territory before Artieda Chirinos. The latter continued 
it, and his successors consummated it. So one of the above- 
named writers sets forth, quoting from the Decades of 
Herrera and from other authors. 

So that even if the rights of Artieda would have been 
conditional, the condition was complied with. 

Furthermore, Costa Rica promulgated its fundamental 
law in the year 1825. By it (Article XV) the mouth of the 
San Juan river was designated as the limit with Nicaragua, 
and the neighboring Republic did not make any claim 
against this designation. 

The Congress of Central America accepted the Costa 
Rican Constitution, and the federal authorities respected it 
until the compact of the union was dissolved in 1839. 

The treaty of limits is objected to on the ground that con- 
stituent Congresses do not ratify treaties ; that the Constitu- 
ent Assembly of Nicaragua which ratified our treaty acted as 
if it were an ordinary Congress ; and that this being so it 
had no power to change the fundamental laws of Nicaragua 
in regard to limits. 

This argument, Mr. Minister, only deserves examination 
because the person who makes it has just been the Secretary 
of Foreign Relations of Nicaragua, and is Lie. Don Tomas 
Ayon. 

The Congresses or Assemblies are the powers in which the 



284 

faculty of enacting laws is vested. There are two classes of 
laws : one tlie fundamental or organic, and the other the 
secondary or municipal. 

The series of fundamental or organic laws constitutes what 
is called the Constitution. And the collection of secondary 
or municipal laws, which receive different names according 
to the category to which they belong, form what is called the 
municipal law of each country. 

The Constitution is the foundation and basis of all munici- 
pal laws, and to enact or frame it more power and more 
authority is needed than for framing or enacting municipal 
laws. 

Constituent Assemblies are the supreme legislative power, 
and they can enact and frame not only organic laws but also 
statutes of other kinds for which less power is required. 

The different Constituent Cortes which have been held in 
Spain are good proof of this well-known truth. 

The Constituent Assemblj^ of France did not only proclaim 
the principles of 1789 and the basis of the Constitution, but 
also abolished the tithes, took measures against nobility, and 
promulgated decrees of other kinds. 

The other Assemblies which have met on the French soil 
have likewise enacted both fundamental and municipal laws. 

The English Parliament, which is an ordinary legislative 
power, has also the faculty to amend laws of organic charac- 
ter, which is tantamount to exercising both legislative and 
constituent authority. 

No objection can be founded, as far as treaties are con- 
cerned, on the fact that in England the ratification thereof 
belongs to the Crown, because this ratification by the Crown 
is not sufficient when the laws of England are modified by 
the treaty. 

The Treaty of Utrecht between England and France was 
not carried into effect, because the English Parliament re- 
fused to pass the bill introduced on it giving sanction to the 
modification made by said treaty to the English laws on navi- 
gation and commerce. 



285 

111 England Parliament has to take cognizance of all treaties 
by wliicli Great Britain is bound to pay any snms of money. 

Without going outside of the Central American limits, we 
find Constituent Powers to have enacted municipal laws or 
statutes and approved of treaties. 

The treaty between Costa Rica and Guatemala of March 
10, 1848, was ratified in the latter Republic b}' a Constituent 
Assembly, and, nevertheless, no one of our public writers has 
ever said that that treaty was null because Constituent Bodies 
cannot ratify public treaties. 

Senor Ayon, in his capacity of Secretary of Foreign Rela- 
tions of Nicaragua, sent a despatch to this Department, un- 
der date of August 20, 1870, asking that the Constituent Con- 
gress of this Republic should approve of certain modifications 
made to a treaty. And from this it is to be concluded that, 
while Senor Ayon, as Secretary of State, believed that Con- 
stituent Congresses have the power to ratify treaties, as a 
writer of pamphlets aifirms, however, that they have no such 
power. 

Constituent Congresses which have authority to enact or- 
ganic laws, which is the greatest power, certainly have au- 
thority to enact municipal laws or statutes, which is the 
least. 

Constituent Congresses lack only the power to enact those 
municipal laws or statutes when their convocation clearly 
and explicitly stated that their only power was to frame the 
Constitution. 

In that case the people elected their representatives for 
that purpose, and for nothing else. 

But the Constituent Assembly of Nicaragua, which ratified 
the treaty of limits, was not convoked exclusively to frame 
the organic law, and this ex-Secretary Ayon himself takes 
pains to explain in his pamphlet of the 10th of July instant. 

But even if the said Assembly would have had only the 
power to enact organic laws, it would also have had the 
power to ratify the treaty of limits under the doctrines 



286 

which the Department of Foreign Eelations of Nicaragua 
holds to be correct. 

Your Excellency says that all provisions about limits be- 
long to the category of organic laws ; and, therefore, under 
this doctrine, a constituent assembly is precisely the one 
which ought to have approved the treaty, because constitu- 
ent powers are those which can enact organic laws. 

The subtle distinction made by Ex-Secretary Ayon that 
the Constituent Assembly of Nicaragua which ratified the 
treaty did so as an ordinary assembly and not as a constituent 
power cannot satisfy any one. 

That Assembly was vested with the august constituent 
power, the first and the highest of all, a power which is never 
delegated, nor could it delegate ; and all its acts ought to be 
considered as performed in such a high capacity. 

I believe, Mr. Minister, that it is entirely useless to officially 
continue this discussion because there is no authority which 
can settle the controversy. If there were a tribunal of arbitra- 
tion to which the matter could be referred, then it would be 
proper to submit to it exhaustive arguments on the subject ; 
but there is no such a tribunal in existence, nor has the 
Republic of Nicaragua been, pleased to suggest its estab- 
lishment. 

It is of no use to state and prove that the treaty of limits 
was made by Plenipotentiaries fully authorized and compe- 
tent to do so ; that it was approved by the Governments of 
Costa Rica and Nicaragua ; that it was ratified by the Con- 
gress of Costa Rica and by the Constituent Assembly of 
Nicaragua ; that the exchange of ratifications took place ; that 
the treaty was solemnly published as the law of the land con- 
cerning limits ; that it has been carried into effect and obeyed 
and respected for 14 consecutive years, during which it has 
been used by the Congresses of Nicaragua as the basis of their 
deliberations, inasmuch as the true reason to oppose the treaty 
is, as explained to our Minister in Managua by General 
Zavala, competently authorized by the Government of Your 



287 

Excellency to discuss this subject, not because the said treaty 
lacks any indispensable solemnity for its validity, biit because 
it is believed to be injurious to the interests of Nicaragua. 

This assertion of General Zavala has been corroborated by 
the Nicaraguan press, which lia^ gone as far as saying that 
the repudiation of the treaties, when injurious, has prevailed 
in all nations when able to cause them to prevail ; that Na- 
poleon III nullified the treaties of 1815 ; that Germany 
broke the treaty by which Eichelieu had taken from her 
Alsace and Lorraine ; that Russia has asked to be exempted 
from the obligation contracted in the treaty of Paris, and 
that Austria will break also the Villafranca treaty. 

But, Mr. Minister, if I should propose to enter, to-day, 
into the analysis of this question, I would show that neither 
Napoleon III, nor Germany, nor any one of the nations 
which you refer to, has ever said, " We do not respect that 
treat}^, because it is injurious to us ; we do not respect it, 
because we were compelled to sign it." 

What has often happened is, that the circumstances and 
interests of the nations having been modified, the pre-existing 
conventions have had to be modified also, either by mutual 
consent or by force ; but, in this condition, neither Costa 
Rica nor Nicaragua find themselves. 

In my despatch of the 10th of June, it was gratifying to 
me to set forth that at the time in which the treaty was 
signed Costa Rica did not overpower Nicaragua ; that it was 
a friendly nation, a sister which had come to her territory to 
assist her in her war of independence and render her efficient 
aid against an enemy who had proclaimed, on her soil, slavery 
and death. ^ 

The disastrous discord between Leon and Granada, and 
the bitter opposition between the parties which called them- 
selves Legitimists and Democrats, attracted to Nicaragua the 
filibuster invasion. And when that Republic was invaded 
the Costa Rican people shed their blood and spent their for- 
tunes to save Nicaragua from foreign domination. 



288 

Costa Eica took possession of tlae steamers of the lake and 
of the San Juan river, carried its flag in triumph up to Punta 
de Castilla, prevented the filibusters from entering the great 
fluvial way, and put an end to the exterminating war which 
afflicted Nicaragua. • 

Your Excellency will allow me to say that I cannot under- 
stand how these acts of redemption can now be made the 
basis of a charge against Costa Rica and the foundation for 
the statement that the treaty is null, without considering that 
the invalidity of the same will, no doubt, bring new calam- 
ities upon the two sister and bordering Republics. * * * 

Mr. Minister, the above-made statements are explicit, very 
explicit indeed. They explain that the customs service is au- 
thorized only for the purposes herein designated, and for 
nothing else ; and that, therefore, the action of the officers 
thereof will be approved by the Government of Costa Rica, 
when circumscribed to the limits set forth in the paragraph 
above copied, and disapproved when extended to more than 
allowed by the language of the same paragraph. 

The practice among nations, and the writings of the authors 
on public law, show to us that the free navigation of the 
rivers is obtained by conventions made with the states through 
the territory of which they pass. It was by treaty that the 
free navigation of the Rhine was obtained. It was by treaty 
that, in the latter part of the last century, the free navigation 
of the Scheldt river was obtained. It was by treaty also that 
the free navigation of the Elbe, the Po, the Danube, the Mis- 
sissippi, the St. Lawrence, the La Platta, and the Amazon 
rivers was also obtained. This universal practice must serve 
Costa Rica as a guide in regard to the free navigation of the 
Colorado river, so much the more so as this river is found in 
all its extent within the Costa Rican territory. 

The writers of public law agree, in regard to this kind of 
rivers, in the doctrine that the state to which they belong 
can legislate in regard to them as they may deem best. 
Costa Rica, taking the most liberal point of view possible, 



289 

provided, by Article XII of its Constitution, that foreigners 
may exercise tlieir industry and commerce, own real estate, 
purchase and manage the same, navigate the rivers, and freely 
exercise their religion. Under this provision all Nicaraguans 
can na\dgate the Colorado river with no more limitations than 
those prescribed by the revenue laws to prevent smuggling. 

These revenue laws are limited to what I explained to you 
in my despatch of the 10th of June, and which I have re- 
peated in the present ; and beyond that they do not go. 

In order that the interest of Costa Rica may not suffer 
detriment and that Nicaragua is not injured, and that the 
freedom of navigation on the river is not interrupted, it 
w^ould be advisable to resort to some means suggested by 
mutual consent. His Excellency the Chief Magistrate of 
this country will hear with pleasure anything which the 
Government of Nicaragua should suggest in this respect, 
because what he wishes is a peaceful and friendly adjust- 
ment. 

I believe that the Government of Your Excellency feels 
itself animated by the same sentiments ; and in this confi- 
dence I have the honor to repeat that I am, Your Excellency's 
most obedient servant, 

LORENZO MONTUFAR. 

To His Excellency The Ministee of Foreign Relations of 
the Republic of Nicaragua. 
19 



290 

No. 58. 

Costa Rica declares that it will keep its custom-houses, and 
maintain its sovereignty over the whole territory which ac- 
cording to the treaty of 1858 belongs to it, unless other 
li7nits are not established by mutual agreement or arbitral 
decision. 

San Jose, Decemher 3, 1875. 

Mr. Minister : I have the honor to acknowledge the receipt 
of the official communication which you were pleased to send 
me under date of November 3 ultimo, which did not reach 
me until the 30th. * * * 

You will allow me, Mr. Minister, in referring to the sub- 
ject-matter of your despatch, to set forth that the custom- 
house force, because it is nothing else, referred to, is not 
a part of the military forces of this Republic, and it is 
the same and even smaller than the one which in former times 
the Government of Costa Rica used to keep stationed either 
at the mouth of the San Carlos river, or on the Sarapiqui, or 
the Colorado river, or Punta de Castilla ; and as neither its 
establishment nor its preservation on any of those points can 
be considered as a wrong done to Nicaragua, or an abridg- 
ment of her territorial rights, my Government sets forth that 
in the use of the rights that the treaty of April 15, 1858, gives 
it on that territory, and within the limits by the same treaty 
prescribed, it will exercise' such acts of dominion and sover- 
eignty as may be proper as long as by decision of an Arbi- 
trator, to whom it has offered to submit the question of the 
validity of the same treaty, the invalidity of that instrument 
is not declared, or as long as by an act of the same Arbi- 
trator, or by mutual agreement of the two Governments, other 
boundaries are not marked out. 

With the greatest consideration I renew to you my re- 
spects, and subscribe myself your attentive servant, 

YICENTE HERRERA. 

To His Excellency The Minister op Foreign Relations of 
the Republic of Nicaragua. 



291 



No. 59. 

Costa Rica protests against the non-compliance 07i the part of 
Nicaragua of Article VIII of the ty^eaty of limits. 

National Palace, 
San Jose, June 26, 1886. 

To His Excellenc]! the Minister (f Foreign Relations of 
Nicaragua^ Managua. 

Sir : Tlie courteous despatch of Your Excellency of the 
31st of May ultimo, in reference to Nos. 21 and 23 of the 
official " Gaceta " of your Republic, has reached my hands, 
together with the said newspaper. 

In the latter one it appears published as a law of this Re- 
public the contract of a maritime interoceanic canal, cele- 
brated by your Government with the " Provisional Company 
of Interoceanic Canal," organized in New York. 

His Excellency the President, well-informed of that im- 
portant document, has directed me to answer Your Excellency 
as follows : 

While it is true that by Article XXIII of the contract, 
the dividing line established by Article II of the treaty 
of April 15, 1858, between this Re-public and yours has 
been respected, it is also true that the provisions of Article 
VIII of the same treaty has not been complied with. 
Said Article reads : " Article VIII. If the contracts 
OF canalization or transit which have been celebrated by 
the Government of Nicaragua, before it had knowledge of 
this treaty, should for any reason whatsoever prove to be 

WITHOUT force, NICARAGUA BINDS HERSELF NOT TO ENTER INTO 
ANY OTHER AGREEMENTS TO THE SAME EFFECT WITHOUT FIRST 
LISTENING TO THE OPINION OF THE GOVERNMENT OF CoSTA RiCA 
AS TO THE DISADVANTAGES THAT THE TRANSACTION WOULD PRODUCE 
FOR BOTH COUNTRIES, PROVIDED THAT THE SAID OPINION IS GIVEN 
WITHIN 30 DAYS SUBSEQUENT TO THE RECEIPT OF THE COMMUNI- 



292 

cation asking for it, should nicaragua have stated that 
the decision was urgent ; and if the natural rights of 
Costa Eica are not injured by the transaction the opinion 

WILL be advisory." 

Besides this it appears, as being almost an impossibility, 
that the building of the canal under the conditions agreed 
upon fails to affect the territorial rights of Costa Rica, since 
Costa Rica owns, in common with Nicaragua, the Bay and 
port of San Juan del Norte, and has also in common the 
free navigation of the river of the same name, and exclu- 
sively from the mouth of the river in the Atlantic up to a 
point three miles this side of Castillo Yiejo, the right bank, 
and the Colorado river. 

Great is the confidence that my Government reposes in 
the high sense of justice of the Government of Your Excel- 
lency, for which reason it is impossible for it to think that 
the non-compliance with Article VIII has been due to the 
evil purpose of violating the faith of a treaty and of break- 
ing faith with this Republic which is the most intimately con- 
nected with Nicaragua in family relations, interests, and des- 
tinies, and, at the same time, with justice and honor. 

My Government expects, with good foundation, that the 
cause of the action referred to is to be found elsewhere, and 
that it does not involve injury, nor does it prevent the omis- 
sion noticed from being corrected. 

But as long as such explanations as are competent from 
the enlightened Government of Your Excellency do not give 
the fact alluded to its correct meaning, the fact itself is to be 
declared inadmissible. 

Costa Rica does not consent to it, not because it is moved 
by material interests which it willingly would sacrifice for the 
sake of another greater and more important benefit for the 
whole of Central America, as the canal in question is, a work 
of which the Costa Rican press has occupied itself with great 
enthusiasm, and in which my Government has always been 
ready to co-operate in all earnest, but because its honor and 



293 

dignity so demand it, and the honor and dignity of a nation 
are above everything else. 

My Government expects that the Government of Your 
Excellency, without any injury to its own sense of self-respect, 
since to recognize the rights" of others is never wrongful, will 
find the means that the rights of Costa Rica remain respected, 
and that the harmony which now exists between both Re- 
publics and which may exercise such beneficial influence on 
their common future does not suffer detriment. But as long 
as the above said omission is not corrected in some pertinent 
way, my Government sees itself compelled to protest against 
the validity of the canal contract concluded in Managua on 
the 25th of May ultimo, without previous audience of Costa 
Rica and in violation of the article above copied of the treaty 
of April 15, 1858. 

May Your Excellency be pleased to submit the above to 
His Excellency the President of your Republic and accept 
the distinguished consideration with which I subscribe my- 
self, your most attentive and obedient servant, 

JOSE MARIA CASTRO. 



294 



No. 60. 

The ex])lanations of Nicaragua as to the non-compliance with 
Article YIII of the treaty of limits are accepted. 

Department of Foreign Relations oe the 
Eepublic of Costa Rica, 

National Palace, 
San Jose, Septemher 10, 1886. 

Sir : This Department has received the courteous despatch 
of Your Excellency, dated on the 23d of July ultimo, in 
answer to mine of the 21st of June instant, wherein I had 
protested against the validity of the canal contract celebrated 
between Nicaragua and the Provisional Company of Inter- 
oceanic Canal, organized in New York. 

. The explanations given by Your Excellency in regard to 
the causes which prevented the Supreme Government of your 
Republic from complying with the provisions of Article YIII 
of the treaty of April 15, 1858, are satisfactory to the Gov- 
ernment of this Republic. So it was desired by this Govern- 
ment, which was sorry to find that national dignity opposed 
an obstacle to its wishes under other aspects of being pro- 
pitious to a contract of such vital importance for the whole 
of Central America. 

Without prejudice to what I have stated, and referring to 
the idea enunciated by Your Excellency, that the validity of 
the treaty of April 15, 1858, has not been recognized by Nic- 
aragua, I must tell Your Excellency that, although in the 
opinion of my Government the said validity rests upon in- 
destructible grounds, and admits of the best defence, it 
deems it better not to discuss at present the said question, 
both because of the unpleasant feelings to which it has given 
rise at other times, and because this Government will readily 
accede to the rescissio?i of the aforesaid treaty, and agree that 
things co7ne hack to the state in which they were before April 
15, 1858, provided that the Oovernment of Your Excellency 



295 

is the one xohich suggests such a thing, since Costa Rica does 
not want to take the initiative in the matter. 

I avail myself of this opportunity to reiterate to Your Ex- 
cellency the protests of high consideration with which I sub- 
scribe myself, your obedient servant, 

JOSE MARIA CASTRO. 

To His Excellency The Minister of Foeeign Relations of 
the Republic of Nicaragua, Managua. 



/ 



296 



Document No. 61. 



Opinion of the historian of Central America^ Dr. Don Lo- 
renzo Mo7itufar, at present the Secretary of State of the 
Republic of Guatemala, in regard to the treaty of limits 
between Costa Rica and Nicaragua. 

This high body (the Central American Congress) never took 
further action upon this subject (the secession of Nicoya), and 
the Federation was dissolved, Guanacaste remaining united to 
Costa Rica. Nicaragua never showed herself satisfied with 
this diminution of her territory, but never thought it advis- 
able to raise an army to obtain the recovery of what she 
thought to be her property. The whole question became 
reduced to diplomatic missions, or pamphlets, or printed 
sheets, more or less offensive. The Walker war caused the 
Central American people to understand that this everlasting 
discord between two countries, equally interested in main- 
taining the independence proclaimed in September, might be- 
come utterly injurious to all. 

Through the action of the other Governments, and es- 
pecially of the Government of Salvador, a treaty of limits 
was resorted to to settle the question. 

The treaty was made and signed by the Plenipotentiaries 
Gen. Don Jose Maria Canas and Gen. Don Maximo Jerez. 
This treaty was ratified, exchanged, and promulgated as law 
of limits. Subsequently there have been questions in regard 
to its validity. It is necessary to give an idea of the ques- 
tion of limits between Costa Rica and Nicaragua, not with 
the particularity of details with which both Governments 
have treated it in their messages, their ofl&cial notes and 
their reports, and the respective legislative bodies, because this 
would be to increase too much the size of the present 
volume, but as laconically as possible. The importance of 
this question depends upon the hopes frequently entertained 



297 

that an international canal will be finally opened. From the 
times of the conquest a passage from sea to sea across the 
American continent was looked for. Magellan found the straits 
that bear his name, but his discovery does not satisfy the aspi- 
rations of the world because it is very near Cape Horn. The 
eyes of the intelligent have fixed themselves sometimes on the 
Darien, sometimes on Tehuantepec or other places more or 
less adequate, and sometimes on the Isthmus of Nicaragua. 
The Spanish Cortes advocated the latter idea. There is in 
favor of it, not only the limited extent of the Isthmus, but 
also the existence of two lakes, namely, the one of Granada 
and the one of Managua. The project is to cause the vessels 
to reach the Lake of Granada through the San Juan river, 
and from there to pass into the Pacific Ocean. Two means 
have been suggested for that : one consisting in cutting 
the ground between the Lake of Granada and the Pacific 
Ocean, and the second consisting in canalizing the Tipitapa 
river, take it to the Managua Lake, and from there open a 
canal to the Southern Sea. 

The enterprise is vast, but many engineers and a great 
number of scientists have thought it practicable ; and there 
have been Nicaraguan patriots who have sometimes imagined 
that the vessels were already passing from one ocean to the 
other. 

Those who believe the great canal to be practicable feel a 
great interest in the demarcation of the dividing line between 
Costa Rica and Nicaragua, because the share that Costa Rica 
will have in the canal will depend upon it. 

The historian Juarroz, in speaking of the Costa Rican terri- 
tory, says : " Its boundaries on the Northern Sea are from the 
mouth of the San Juan river to the Escudo of Veragua, and 
on the south from the Alvarado river, dividing line of the 
Province of Nicaragua, to the Boruca river, end of the King- 
dom of Tierra Firma." 

Don Felipe Mohna says the same thing ; but the testimony 
of Molina may with reason be impeached, because, when he 



298 

wrote, lie was in tlie service of Costa Eica, and, therefore, he 
had an interest in securing the triumph of the cause entrusted 
to his defence, not only for the benefit of Costa Kica, but for 
his own reputation. 

But the testimony of Juarroz is unimpeachable. Juarroz 
wrote in Guatemala, and had no reason of any kind to feel 
any more affection for Costa Rica than for Nicaragua. He 
based his statements upon the documents he had before his 
eyes, and these completely authorize his assertions. 

Philip II, King of Spain and of the Indies, signed at 
Aranjuez the commission of Don Diego de Artieda y Chiri- 
nos as Governor and Captain-General of the Province of 
Costa Elca, and marked as the limits of his command from 
the mouth of the Desaguadero (outlet), which is the San 
Juan river, to the Province of Veraguas, and from the limits 
of Nicaragua on the Nicoya side to the valleys of Chiriqui. 

The limits between Costa Rica and Nicaragua being the 
Desaguadero (outlet), it is indubitable that Costa Rica has a 
part in the interoceanic canal, because it is precisely through 
that outlet that the vessels are to be introduced from the 
Atlantic into the Lake of Granada. But no part belongs to 
Costa Rica on the navigation through the lake, because the 
Salto or Alvarado river serves as a limit. 

An event came to favor Costa Rica, and this was the an- 
nexation of Guanacaste, whose limits extend to the La Flor 
river. By virtue of this annexation the boundary between 
Costa Rica and Nicaragua was the Great Lake and the whole 
San Juan river. 

The Federal Congress approved the annexation, but not 
finally. The approval was temporary, until Congress, in use 
of its powers, should fix the limits of each State. But the 
Federation was dissolved and the limits were never fixed. 

Nicaragua claimed several times the restoration of Guana- 
caste, but Costa Rica refused to surrender it. This claim 
gave occasion ,to several acts of the people of Guanacaste 
favoring their annexation to Costa Rica ; and the Quijano 



299 

attempt of 1836 shows that they were veiy well pleased with 
their new allegiance. 

The unceasing agitation created by the disagreement of 
both Governments gave occasion to fear that the interest of 
the whole of Central America might be endangered. The 
filibuster war caused this danger to be serious and percepti- 
ble ; and as soon as the war ended the Government of Sal- 
vador sent to Costa Rica, upon agreement with Nicaragua, 
General Don Pedro Romulo Negrete, in the capacity of 
Envoy Extraordinary and Minister Plenipotentiary, to pro- 
pose some settlement. Gen. Negrete aifirmatively stated 
afterwards, that he had instructions to declare war against 
the State which would refuse to put an end to the question 
by means of a tTeatj. 

The Government of Nicaragua sent to San Jos^ Gen. Don 
Maximo Jerez as her Plenipotentiary ; and Don Juan Rafael 
Mora, then President of Costa Rica, conferred full powers on 
Gen. Don Jose Maria Canas, who had distinguished himself 
so much in the war against the filibusters. Then the Canas- 
Jerez ivesitj was signed, and its Article II reads as follows : 

" The dividing line between the two Republics, starting from 
the Northern Sea, shall begin at the end of Punta de Cas- 
tilla, at the mouth of the San Juan de Nicaragua river, and 
shall run along the right bank of the said river up to a point 
three English miles distant from Castillo Yiejo, said dis- 
tance to be measured from between the exterior works of 
said castle and the above-named point. From here, and 
taking the said works as centre, a curve shall be drawn along 
said works, keeping at the distance of three English miles 
from them in its whole length until reaching another point 
which shall be at the distance of two miles from the bank of 
the river on the other side of the castle. From here the line 
shall continue in the direction of the Sapoa river which 
empties into the Lake of Nicaragua, and it shall follow its 
course, keeping always at the distance of two miles from the 
right bank of the San Juan, all along its windings, up to 



300 

reaching its origin in the lake ; and from there along the 
right shore of the said lake until reaching the Sapoa river 
where the line parallel to the bank and shore will terminate. 
From the point in which the said line shall coincide with the 
Sapoa river, a point which, according to the above descrip- 
tiooi, mnst be two miles distant from the lake, an astronomic 
straight line shall be drawn to the central point of the Sali- 
nas Bay on the Southern Sea, where the line marking the 
boundary between the two contracting Republics shall end. 

By this article both Republics yielded somewhat in their 
pretensions. The Costa Rican territory is not limited by the 
whole course of the San Juan river. It begins at the mouth 
of this river, follows its right bank up to a point this side of 
Castillo Viejo, and three miles distant from its fortifications. 
The Costa Rican territory does not reach the lake, but de- 
viates from it, as expressed by the treaty. It does not either 
reach the La Flor river, but remains limited to the centre of 
the Salinas Bay. 

Nicaragua, on her part, abandoned also many of her pre- 
tensions. Now, her territory does not reach the Salto or 
Alvarado river, but is limited to the Salinas Bay and the line 
drawn by the treaty. 

This treaty was made by two plenipotentiaries competently 
authorized; it was approved by the Government of Costa Rica 
and by the Government of Nicaragua ; it was ratified by the 
Congress of Costa Rica and by a Constituent Assembly of 
Nicaragua ; the ratifications thereof were exchanged within 
the time designated in it ; it was promulgated after the ex- 
change and published as the law of limits in the official news- 
paper of Nicaragua. Costa Rica communicated the treaty to 
the foreign diplomatic body accredited near its Government, 
and also to its diplomatic body abroad. Nicaragua also com- 
municated it to the Nicaraguan and the foreign diplomatic 
body, and all the friendly nations considered it as an accom- 
plished and unimpeachable fact. For several years several 
legislative bodies of Nicaragua enacted laws fixing jurisdic- 



301 

tional limits, taking it for granted that the treaty was valid. 
The lapse of seven years gave it greater strength. During 
that whole period not a single word was uttered officially 
against the treaty. 

But after the lapse of more than seven years, Lie. Don 
Tomas Ayon, Minister of Foreign Relations of the Republic 
of Nicaragua, deemed it advisable to send a message to the 
Legislative body, objecting to the validity of the treaty. 

This came to pass as follows : In 1868 the Government of 
Nicaragua, tired of the delays of certain companies in the 
opening of the canal, entered, in Paris, into a contract with 
Monsieur Michel Chevalier, throvigh the same Senor Ayon. 
Chevalier was well acquainted with the Canas-Jerez Treaty, 
and thought that it was absolutely indispensable to respect 
it, and required as a si?ie qua non condition that Costa Rica 
should adhere to the agreement. So it was stipulated ; and 
the Government of Costa Rica adhered, and its Congress 
ratified the agreement. 

Senor Ayon had been dazzled by the official position of 
Chevalier. He thought that for a Senator of the Empire of 
Napoleon III nothing could be difficult, and that the Emperor 
had an interest in the canal, both for the sake of extending 
his influence in the New World and also for the purpose of 
accomplishing a certain scheme which had been suggested to 
him and which he accepted while he was imprisoned at the 
Castle of Ham. But circumstances had changed. The 
Emperor of the French was preoccupied with European 
affairs, and a sad disappointment had shown him that his sup- 
posed omnipotence did not extend to the world of Columbus. 
Chevalier could not get the funds required for such a vast 
enterprise, and although with his contract in his hands he ap- 
plied to the great capitalists of Europe, and looked for stock- 
holders and partners, he only received attentions and fair 
words, but nothing positive. It may be said that he went from 
door to door asking for protection, and that none was given 
him. 



3Q2 

All of this was perfectly well known, both in Costa Rica 
and Nicaragua, but Chevalier was always laboring under de- 
lusions, and imagined the great enterprise to be accomplished 
under his auspices. These delusions he unceasingly trans- 
mitted to Senor Ayon, who, having returned to his country 
from Europe, could not see, on account of the distance, the 
difficulties encountered by Chevalier, the repulses which he 
constantly met, and the hopeless prospects that the canal 
should be ever built under that contract. And he went as 
far as to call unpatriotic all those who did not share his 
delusions. 

The Government of Costa Rica, well informed by its agents 
abroad of the true situation of Chevalier, understood that 
the contract, under those circumstances, instead of doing any 
good was really injurious to Costa Rica, to Nicaragua, to 
Central America, and to the whole world, because as long as 
it was in existence no further negotiations could be attempted 
either with the United States, which was the nation called 
by nature to do the work, or with any other country. 

The Costa Rican Executive happened to be invested with 
unlimited powers, and, after having meditated carefully upon 
the subject, considering it under all its aspects, it decided 
to declare that the Ayon-Chevalier contract, as far as Costa 
Rica was concerned, had become inoperative. This declara- 
tion: made a great sensation among the few Nicaraguans who 
still shared the delusions of Senor Ayon, and caused them to 
endeavor to destroy the Canas-Jerez treaty, with which, if 
obtained, they would be able to enter into canal negotiations 
without the intervention of Costa Rica. 

Senor Ayon does not deny that the treaty was made by 
legitimate representatives of both countries ; nor that it was 
approved by both Executives ; nor that it was ratified by the 
Congress of Costa Rica and the Constituent Assembly of 
Nicaragua ; nor that the ratifications thereof were exchanged 
in due form ; nor that the treaty was solemnly promul- 
gated in both countries ,as the law on limits ; nor that the 



303 

two coutracting parties respected it and constantly complied 
with its provisions for more than seven years without any 
objection or opposition. Senor Ayon does not deny any- 
thing of the kind ; but he grounds his objection on another 
foundation. He says that the organic law of Nicaragua 
which marked the limits of the state included the territory 
of Guanacaste ; that the Canas-Jerez treaty marks different 
limits and therefore modifies • and amends the Nicaraguan 
Constitution ; that the Constitution, then in force in Nicaragua, 
provided that no amendment or change could be made in it by 
a decree of a Legislature without the ratifi^cation thereof by 
another subsequent Legislature ; that the Canas-Jerez treaty 
was ratified by one Legislature, but that it was not even sub- 
mitted for approval to the next one ; and that, therefore, there 
is in radice a cause of nullity. 

The Legislative body of Nicaragua did not take any action 
upon the subject ; and the question remained undisposed of. 

Costa Rica has replied to Senor Ayon stating that the 
Congress which ratified the treaty of Nicaragua was not an 
ordinary Congress but a Constituent Assembly, having the 
most competent authority to reform the Constitution and to 
make a new one ; that if the said Assembly was convened for 
the purpose of framing the organic law of the state, no reason 
can be alleged to deprive it of the right to mark the bound- 
aries. It has also been said that even in case that the As- 
sembly, instead of being a constituent body would have been 
an ordinary Congress, the treaty would not be void, as 
claimed by Senor Ayon, for the reason that several Nic- 
araguan Legislatures, one after another, took it as valid, firm, 
and unimpeachable, and enacted laws according to its pro- 
visions, and established jurisdictional limits in conformity 
with its text. 

The Costa Rican Government always maintained upon 
these grounds the validity of the treaty, and it may be de- 
pended upon that if the question should be submitted to the 
arbitration of a power friendly to both contracting parties, 



304: 

no nation in the world would declare the treaty to be null 
upon the arguments and doctrines of Senor Ayon. 

Certain Executive tendencies have sometimes been felt in 
Costa Eiica, although unsupported by the general opinion of 
the Costa Eican people, in favor of the invalidation of the 
treaty, in order to secure, through this action, that the bound- 
ary should be again the whole of the right bank of the San 
Juan river from Greytown to San Carlos, and from the Lake 
of Nicaragua to the La Flor river, as it has been believed to 
be the limit marked by nature. 

If these views should prevail, and the treaty should be set 
aside, the questions between Costa Rica and Nicaragua would 
become again very grave and uncertain. But if the difficulty 
is confined simply to the determination of the question, 
whether the Canas-Jerez treaty is or is not valid, there can- 
not be any doubt in law as to the verdict which would be 
rendered. And so the two Republics understand since they 
have combined to respect the limits such as marked by the 
treaty. 



305 



No. 62. 



JExtrads from, the '■^.History of Nicaragua from the Remotest 
Times to the year 1852," written hj order of General Don 
Joaquin Zavala^ President of the Repuhlic, hy Sehor Dr. 
Don Tomas Ayon. Vol. I. Granada ; Printing office of J^l 

. Oentro Americano, 1882. — The author of said history gives 
the name of Desaguadero to the San Juan de Nicaragua 
river. 

From Book 3, Chapter I : 

" There being no necessity to stop in the Province of Nic- 
aragua, that is to say, in the territory which is now the De- 
partment of Bivas, he proceeded from Granada to Tina- 
bita City without stopping at Masaya, which was a great and 
populous city. Before leaving he took a brigantine, which 
he caused to explore the Great Jjake, until finding its outlet 
{the San Juan), but the brigantine could not go farther than 
this outlet, because there were many rocks and two great 
rapids." 

From Book 3, Chapter III : 

" In compliance with royal instructions, he engaged him- 
self in enlisting sufficient force to go, under the command 
of Captain Gabriel de Bojas, to discover the outlet (Desa- 
guadero) of the Lake of Nicaragua, and found there a town. 
This enterprise was considered by the King of Spain as a 
most important one, because, after careful explorations of 
the land and the lake, he wanted to establish through the 
said outlet the communication between both oceans, and find 
thereby the shortest route to the Spice Islands." 

From Book 3, Chapter II : . 

" Knowing the interest which the court felt in finding the 
route to the Moluca Islands, several persons addressed the 
King, and set forth that, as the natural straits of communi- 
cation between the Atlantic and the Pacific Oceans had not 
20 



306 

been found, they desired to call his attention to one of the 
four routes which suggested themselves to establish com- 
munication between both oceans. The first of these routes 
vms the outlet {the Desaguadero) of the Great Lake of Nicara- 
gua, through which large vessels went up and came down^ 
although it has still some dangerous rapids, and by opening 
a canal, through the few leagues of land between the lake 
and the Pacific Ocean it would he easy for all vessels to reach 
that ocean. The second through the Lagartos river, also 
called Chagres, which rises at about 5 or 6 leagues from 
Panama, where a canal could be opened in order to connect 
the river with the ocean. The third, by the river of Vera 
Cruz or Tehuantepec, through which the Mexican merchants 
used to navigate with their merchandise from one sea to the 
other. And the fourth, the passage from Nombre de Dios to 
Panama, where it is assured that there is no great diJEficulty 
to open a road, although there are some mountains. They 
also set forth that between the Uraba Gulf and San Miguel 
there were only 25 leagues, and that, although the difficulties 
to open a canal there would be great, the power of the Kings 
of Castile was still greater. They said, further, that the ad- 
vantages of the work were indisputable since a third part of 
the distance to the Moluca Islands could be saved in this way, 
with the advantage that the voyage could be always made 
within dominions of Spain, without interference on the part 
of the Portuguese, and avoiding expense and labor." 

From Book 4, Chapter lY : 

" They said that from the Lake of Granada to the port 
of San Juan del Sur, there were onl}'^ 3 leagues of land, 
and that with little labor and cost cars could go from the 
town of Nicaragua (Rivas) to that port ; that the frigates 
and the other men-of-war used, to pass from the same lake, 
through the river of El Desaguadero, to Nomhre de Dios 
on the Northern Sea, where there was a port which xoas 
considered to be the largest and the best yet discovered. ; and 
that for these reasons it was advisable to order that the com- 



307 

7nerce with the Souf hern Sea should continue to he made hy the 
way of El Desaguadero, saving thereby great expenses and 
trouhle which were encountered at Nomhre de Dios hy those ar- 
riving from Spain and those who, coming from Peru and 
other lands, proceeded to Spain. They remarked also that 
the climate of Nombre de Dios was verj^ unhealthy, and that 
the greatest part of the Spaniards arriving there died, and 
that those who escaped death were left in the greatest desti- 
tution on account of the extreme poverty of the land." 

From Documents appended to the Book. 

"Item. Your Majesty will know that between the Lake 
of this city and the port of San Juan of the Province of Nic- 
aragua on the Southern Sea there are no more than 3 
leagues by land, so that, with very little labor and expense, 
cars can go from the town of Nicaragua to the port of San 
Juan ; and from the Lake of this city to the Northern Sea the 
frigates and the 'tnen-ofioar which leave this j:>lace go by water 
to Wombre de Dios, hy the river of El Desaguadero, which 
empties in the Northern Sea, lohere there'is a port, the greatest 
and the best yet discovered. 

" For the reasons and causes aforesaid, and according to 
what we have seen here and experienced, it seems to us that 
if Your Majesty is pleased to order that the commerce with 
the Southern Sea continues to be carried on through this 
outlet (Deste Desaguadero), a great many fatigues and ex- 
penses, which are encountered and incurred at Nombre de 
Dios by those coming from Spain or going there from Peru 
and other countries, would be saved ; all of this, without 
counting that the greatest part of the Spaniards who come to 
Nombre de Dios and the cit;^ of Panama, get sick and die. 
And, as Hving is so expensive there, those who escape death 
become so poor that they scarcely have means to continue on 
their voyage." 



308 



No. 63. 

Organic Laws of Costa Rica in regard to limits with Nic- 
aragua. 

Decree of'''' Basis and Guarantees " of March 8, 1841. 

Article 1. 

Sec. 2. The territory of the State (Costa Rica) is comprised 
within the following limits : On the west, the La Flor river 
and the continuation of its line along the shore of the Lake 
of Nicaragua and the San Juan river, down to the mouth of 
the latter on the Atlantic Ocean ; on the north, the same 
ocean from the mouth of the San Juan river to the Escudo 
de Yeragua ; on the east, from the last named point to the 
Chiriqui river ; and on the south, from the last named river 
along the coast of the Pacific Ocean, up to the La Flor river. 

Constitution of April 10, 1844:. 

Article 47. The State recognizes as the limits of its terri- 
tory the following : On the west, beginning at the mouth of 
the La Flor river on the Pacific Ocean, continuing along the 
course of said river, the shore of the Lake of Nicaragua and 
the San Juan river, until the mouth of the latter on the At- 
lantic ; on the north, the Atlantic Ocean from the mouth of 
the San Juan river down to the Escudo de Veragua ; on the 
east, from the last named point to the Chiriqui river ; and on 
the south, from the mouth of this river to the mouth of the 
La Flor river. But the border line on the side of the State 
of Nicaragua will be finally settled when Costa Rica shall be 
heard in the national representation, or when in default of 
this hearing the affair is submitted to the impartial decision 
of one or more States of the Republic. 



309 

Constitution of Fehruary 10, 1847. 

Article 25. (It is exactly in the same language as that 
used in the Constitution of 1844.) 

Constitution of Hovemher 30, 1848. 

Article 7. The limits of the territory of the Eepublic are 
those of the uti possidetis of 1826. 

CondHutionof Deceinter '^^^ 1859. 

Article 4. The territory of the Eepublic is comprised 
within the following limits : On the Nicaraguan side, those 
fixed by the treaty concluded with that Eepublic on April 
15, 1858 ; on the side of New Granada, the limits of the uti 
possidetis of 1826, subject to what may be determined by 
..subsequent treaties with that nation ; and on the other two 
sides by the Atlantic and Pacific Oceans. 

Constitution of Ap>ril 15, 1869. 

Article 3. The limits of the territory are the following : 
On the north, the Atlantic Ocean ; on the south, the Pacific 
Ocean ; on the side of the United States of Colombia, those 
of the uti possidetis of 1826 ; and on the side of Nicaragua, 
those established by the treaty of April 15, 1858. 



310 



No. 64. 

Failure of canal negotiation toith the Oovernment of the 
United States, owing to the fact that Nicaragua refused 
Costa Rica intervention in it. 

[From Message of the President of the United States to the Congress of 

the Nation]. 

Towards the close of the last Administration negotiations 
were earnestly conducted here with Nicaragua relative to a 
ship canal. The result thereof, however, did not prove suc- 
cessful because the pretensions of the Nicaraguan Govern- 
ment were not acceptable. 

" As the canal through the Nicaraguan route must proha- 
hly have to 2)'iss aloyig a portion of the San Juan river, over 
which Costa Rica clai?ns to have Jurisdiction, it was advisable 
to celebrate a treaty with the latter Republic as well as with% 
Nicaragua in regard to this point. To this end. the proper in- 
structions were transmitted to the American Minister in Cen- 
tral America.; but he has reported that Nicaragua was un- 
willing to negotiate, especially in connection with Costa RicaP 

[From the " Gaceta de Nicaragua," No. 37, July 26, 1879.] 



THE END. 



EREATA. 



Page. 


Line. 


Reads — 


Should read— 


15 


9 


If, as I confidently hope, 


If, as I confidently hope, upon 
grounds which cause me to en- 
tertain a profound conviction. 


21 


14 


Rio Grande river. 


Eio Grande. 


22 


2 


1573. 


1576. 


23 


19 


" correjidor." 


" corregidor." 


24 


4th line of 
notes. 


-Peealta. 


Peealta. 


24 


Sth line of 
notes. 


' Archivo. 


" Archivo. 


25 


5 


Ujarras (Curredabat), 


Ujarraz, Curridabat, Aserri, la 






Asserri, la Villeta, 


Villita, 


25 


16 


Potosi. 


Potosi. 


25 


18 


Diria, Dinomo. 


Dirid, Diriomo. 


25 


19 


Naudasmo, 


Nandasmo, 


25 


20 


Nisidiri, 


Nindiri, 


25 


21 


Subtiada. 


Subtiaba. 


"33 


8 


1541. 


1561. 


33 


13 


TlEEBA FlEMA 


Tieeea Fieme. 


36 


30 


Perera. 


Pereyra. 


37 


2 


Laens. 


Saenz. 


37 


11 


British Cyclopaedia. 


Encyclopaedia Britannica. 


42 


21 


easily enter it. 


easily enter it.^ 


42 


1st line of 
notes. 


Package. 


File. 


43 


11 


According to that treaty 


According to that treaty, a strip of 






the right bank of the 


land three English miles wide, 






river, from its origin 


on the right bank of the river. 






in the Lake up to a 


from its origin in the Lake, to a 






point three miles 


point three English miles from 






from Castillo Viejo, 


Castillo Viejo, around which the 






belongs to Nicaragua. 


boundary describes an arc of a 
circle, the fortress serving as cen- 
tre, which ends three miles be- 
low, on the water's edge, belongs 
to Nicaragua. 


56 


3 


April 18. 


April 15. 


56 


29 


Minister. 


Commissioner. 


61 


9 


ratified. 


approved. 


62 


17 


article 149. 


article 194. 


65 


17 


1853. 


1854. 


65 


25 


the organic law of 1853, 


the laws of organic character passed 
by the Assembly of 1854. 


66 


19 


1853. 


1854. 


69 


14 


1853. 


1854. 


76 


11 


1851. 


1857. 


86 


6 


Trevelyn 


Trevelyan 


88 


14 


in Central America. 


to Nicaragua. 


116 


9 


negotiator 


negotiatprs 



It 



EERAT A— Continued. 



Page. 


Line. 


Keads — 


Should read— 


124 


22 


928 


298. 


141 


5 


150 


90 


141 


8 


east 


right 


144 


29 


1858 


1856 


157 


17 


specia 


special. 


158 


29 


Article IX 


Article XIX. 


187 


18 


is concerned, 


is concerned, as Nicaragua is by 
treaties. 


193 


6 


November 


November 8, 1857 


208 


4 


Rafael Moea 


Juan Eafael Moea 


215 


36 


Eafael Mora 


Juan Rafael Mora 


231 


25 


straight line 


straight line established between the 
same limit and the limit on the 
noi-thern side 


285 


4 


Bolarios 


Bolafios 


242 


3 


Sarapaqui 


Sarapiqui 


254 


31 


Nicaragua 


Guatemala 


268 


18 


Article XLIII 


Article LIII 


269 


19 


Article XLVI 


Article LVI 


271 


13 


northwest 


northeast 


272 


34 


Arsenal 


Arenal 


280 


26 


Pelez 


Peldez 


280 


30 


Suchitepiquez 


Suchitepequez 


281 


9 


Firma" 


Firme " 


291 


5 


1886 


1880 


294 


7 


1886 


1880 


297 


34 


Firma " 


Firme " 


305 


29 


Chapter II 


Chapter IV 


307 


25 


Deste 


deste 



LbJa^ 



M 



